Employment Law Alert: Business Owners Should Implement Social Distancing Policies and COVID-19 Liability Waivers

The Centers for Disease Control and Prevention (CDC) have recently issued Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (“COVID-19”). The CDC guidelines allow businesses to plan, prepare and respond to COVID-19 as they re-open for business.

In anticipation of the need for effective, proactive and protective employment policies, we have drafted a Social Distancing Policy (“SD Policy”) and COVID-19 Waiver Form (“Waiver”) for use by businesses who are in the process of reopening. This article addresses our recommendations for the implementation of such policies.


Social Distancing Policy

The goal of the SD Policy is to maintain a safe and healthy workplace in order to protect employees, customers and their families from the spread of COVID-19. The CDC has found that one of the most effective ways of preventing the spread of COVID-19 is by limiting face-to-face contact with others, commonly known as social or physical distancing. The Occupational Safety and Health Authority (OSHA) similarly recommends increased social distancing when preparing workplaces to respond to COVID-19. The State of Minnesota is also asking employers to implement social distancing measures as a condition of reopening workplaces. An SD Policy is important because the current consensus on the virus suggests, among other things, that:

  • COVID-19 is highly contagious.
  • COVID-19 spreads mostly among people who are in close contact (within about 6 feet, or two arms’ lengths) for a prolonged time period (between 10 and 30 minutes, depending on the distance).
  • The virus generally spreads when an infected person coughs, sneezes, or talks, and droplets from their mouth or nose get in the air and land in the mouths or noses of nearby persons.
  • A person who has the virus may not have any symptoms but may still spread COVID-19.
  • A person can get COVID-19 by touching another person, such as a handshake, or by touching another surface or object that has the virus on it and then touching their own mouth, nose, or eyes.
  • The virus can live on surfaces for up to several days, depending on the surface and other conditions.

For the foregoing reasons, the CDC, OSHA and other public health experts recommend limiting contact with other people and common surfaces to limit the spread of COVID-19.

In drafting our comprehensive SD Policy, we have considered the workplace environment and how an employer can strategically implement policies and procedures designed to protect employees and customers. The SD Policy includes the following strategic and proactive provisions:

  • Teleworking/Working From Home
  • Schedule Changes
  • Prohibition of Large Gatherings
  • Meeting Restrictions
  • Six-Foot Distancing Rule
  • Physical Barriers
  • Prohibition of Physical Greetings
  • Closing and Restrictions Regarding Common Spaces
  • Break Location Guidance
  • Limitations on Visitors
  • Shared Supplies and Equipment
  • Elevator and Stairway Use Restrictions
  • Recommended Posted Notices

The main aspects of the SD Policy can be modified and customized to be specifically applicable to the workplace of the employer.


COVID-19 Customer/Employee Waiver

Employers are looking for ways to limit their liability arising from potential COVID-19 cases contracted in the workplace. A waiver is the act of intentionally relinquishing or abandoning a known right, claim, or privilege. Businesses are considering obtaining written waivers from employees and customers to limit their potential liability. Some commentators opine that such agreements may not be enforceable due to the unequal bargaining power between employers and employees. However, at present, it is unlikely that the courts have considered and decided that such agreements are unenforceable.

Despite the potential legal challenges to written waivers, an employer can implement such agreements. By implementing an SD Policy, an employer may also successfully argue that they have taken appropriate steps to minimize their liability and that any potential claims for negligence in connection with the contraction of COVID-19 at their workplace are not supported due to the employer’s proactive actions to prevent the virus. A Waiver will potentially provide more protection.

We offer a free initial consultation about the implementation of an SD Policy and Waiver form to our clients, and potential new clients. If you are interested in such a discussion, please do not hesitate to contact me.

David G. Hellmuth, Esq. and Hellmuth & Johnson, PLLC represent a large number of businesses, and their owners, on a variety of legal matters. More information about Mr. Hellmuth and the law firm can be found at our website, www.hjlawfirm.com.