Dental HR expert: Can employers force employees to sign a COVID-19 liability waiver?

The question of whether an employer can have an employee sign a waiver regarding COVID-19 liability in the event that that employee contracts the virus "bubbles up now and again," according to dental human resources expert Tim Twigg. However, Twigg is quick to state that any method of forcing an employee to sign something is illegal and not enforceable.

In the HR world, "employees cannot waive their rights under the law," Twigg said. One of those rights, he explained, is to work in a place that is safe and adheres to U.S. Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) recommendations and guidelines.

Tim Twigg.

What else would Twigg want dentists and dental practice owners to know about the subject of liability waivers? Here's what he told me:

Our current position on having employees sign some type of COVID-19 liability waiver is: We question the value of these waivers and we question how much protection they would provide.

What you need to focus on is ensuring workplace safety and following the latest CDC, OSHA, public health, and ADA guidelines and protocols. The best way to protect yourself is to proactively engage all employees in being involved with and requiring them to take all precautions through training, orientation, and reminders.

Peace of mind will come from knowing you are doing all of those things right, not from a signed form or letter.

If it can be shown/proven that you were negligent, remiss, or ignored taking all of the necessary steps/precautions to ensure a safe work environment (or essentially were using the waiver as a "get-out-of-jail" card to not do those things), then a signed letter or waiver is not going to help.

It's also worth considering the message you send by having all employees sign a document like this, especially if other employers are not.

From an HR perspective, COVID-19 carries similar risks as other diseases that might be contracted in the workplace and liability waivers have not been viewed as valuable or beneficial.

If you are (or have been) taking all of the necessary steps, and an employee contracted COVID-19, it would be hard to make the case that you were negligent or personally responsible for the transmission.

Additional resources can be your workers' compensation and liability insurance carriers.

Twigg and his team at Bent Ericksen & Assoc. have compiled a guide -- titled "HR Considerations for Handling Employee Sickness Post-COVID-19: A How-To Guide" -- that is designed to help practitioners navigate the issues of employees being exposed and/or infected.

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