As cities and schools across California and the U.S. are preparing to reopen, employers are requiring workers to return to in-person interactions – despite the fact that we are still in the grips of a global pandemic. Further, as Kaiser Health News reports, some employees are being compelled to sign a waiver of liability – agreeing not to sue their employer if they catch COVID-19 or suffer any injury from it while working there. In Irvine, CA, a teacher who refused to sign the waiver was fired within a week. “They said it was my choice to sign the paper, but it wasn’t really my choice. I felt so bullied.”
We encourage employees to discuss their concerns with a Los Angeles employment lawyer before signing any such waiver or if you have been fired as a result of refusing to sign one. Note that last year, California lawmakers passed AB-51, which bars employers from mandating workers or prospective employees sign away their right to pursue legal claims or benefits as a condition of employment. It also forbids employers from terminating any worker who refuses to sign it. That law is being challenged in court by a number of business interest groups, but for now, it stands.
Reports of employers requiring their workers to sign these liability waivers have been sporadic, probably because they know these agreements won’t hold up in court. In addition to AB-51, there is the fact that there is clearly a power imbalance between employers and employees/prospective workers – especially at a time when so many people are unemployed.
Can You Sue Your Employer if You Get Sick?
What is interesting about these agreements is that for the most part, they aren’t even necessary to begin with. That’s because most employees cannot sue their employer for work-related injuries or illnesses. Instead, they claim workers’ compensation benefits – and by law, the right to worker compensation cannot be signed away. Workers’ compensation is a no-fault system (once called “the grand bargain”) wherein workers gave up their right to take their employer to court for compensation of work injuries/illnesses in exchange for the employer’s agreement to pay medical costs and disability benefits for those conditions arising out of the course and scope of employment.
Of course, that assumes the worker is actually an employee and not an independent contractor, in which case workers’ compensation wouldn’t apply.
U.S. Senate Majority Leader Mitch McConnell has a proposal on the table that would extend wide protection to employers for pandemic-related claims – for up to five years. Nearly a dozen states have enacted some form of immunity from coronavirus legal claims filed by employees or patrons. In California, lawmakers are mulling a measure that would give schools liability immunity.
In other states, a number of businesses are facing wrongful death lawsuits filed by people who had a family member die of the virus. Not all of those are against employers, but in most cases, they are alleging a degree of negligence that goes beyond an ordinary lack of care. Instead, they are asserting “gross negligence.” Acts of gross negligence are those that show willful and wanton disregard for the safety and well-being of others. These cannot be shielded from liability through any waiver.
What Are Your Options if Your Boss Demands Your Physical Presence?
If you have been called back to the office but are concerned about being in an enclosed space for hours on end, your options will really depend on the circumstances.
For example, if you have a medical condition that may make you particularly susceptible to the virus, you might be entitled to seek relief under the Americans with Disabilities Act. The ADA entitles workers with disabilities (a physical/mental impairment that substantially limits at least one major life activity, has a record of the impairment and is regarded has having such an impairment) to reasonable accommodations. That could mean a modified shift, temporary reassignment or remote work. But this only applies to companies with 15 or more workers, and there may be exceptions if such accommodations may impose an undue hardship on the employer’s business operations.
Beyond that, options may be a bit more limited. Workers protected by a union might ask the union to intervene. If the government has issued a stay-at-home order and your boss is asking you to come in anyway, you may wish to file a complaint with the state workers’ health and safety agency.
Keep in mind that if you decline to go back to work based just generally on concern about the novel coronavirus (rather than citing a specific safety concern), you may be risking your unemployment benefits.
In the event you have small children and no means of caring for them if you return to work, you might be able to claim 12 weeks of paid leave per the Families First Coronavirus Response Act. Problem is, many people have already used up that time. Once this leave runs out, companies aren’t required to continue making accommodations for child care quagmires.
If you have questions or believe you have been treated unfairly or that your employer may have acted illegally, contact an experienced Los Angeles employment lawyer.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949-375-4734.
Additional Resources:
Employers require COVID liability waivers as conflict mounts over workplace safety, Aug. 2, 2020, By Harris Meyer, Kaiser Health News