Reopening Your Workplace Series, Issue 3 – Donnelly + Gross
While businesses are being pushed by federal and state governments to reopen, there has been limited federal and state guidance on how to do so safely. The truth is, there is still a lot of information we do not know about Covid-19, its transmission, and our individual susceptibilities to this infection. Without specific government-enforced protocols that might offer businesses a safe harbor from liability, it remains uncertain as to what preventative measures will count as reasonable if challenged by a claim of coronavirus exposure and how businesses will be held accountable for coronavirus exposure as they reopen.
While a liability waiver cannot protect against a workers’compensation claim based on coronavirus exposure, it couldprotect a business from coronavirus exposure claims by nonemployee subcontractors, interns/volunteers and customers. Nonemployees are relied upon heavily in some industries. Building construction and real estate companies employ subcontractors. Nonprofits use volunteers and interns. Many professional services, like law, engineering, internet technology, architecture, and veterinary medicine, require physical interaction with their clients. Other businesses send employees into customers’ homes for repair and maintenance. The exposure problem can occur inor out of the workplace through normal business operations.
In Florida, liability waivers which purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability. This means ambiguous or confusing language will not be enforced. A liability waiver must clearly identify what is being waived. Here, the waiver should acknowledge that coronavirus transmission risks are inherent in increased interaction with other individuals and exposure to surfaces to which other individuals have also been exposed. The waiver should also acknowledge that such risks are present in the workplace, outside jobsite, and as a result of working with the business.