Nearly 50 COVID-related lawsuitshave been filed relating to conditions of employment, includingexposure to the coronavirus or the lack of protective equipment,(Photo: Shutterstock)

After spending a May day preparing her classroom to reopen forpreschoolers, Ana Aguilar was informed that the tots would not haveto wear face masks when they came back. What's more, she had tosign a form agreeing not to sue the school if she caught COVID-19or suffered any injury from it while working there.

Other teachers signed the form distributed by the MontessoriSchools of Irvine, but Aguilar said she felt uncomfortable,although it stipulated that staff members would be masked. At 23,she has a compromised immune system and was also worried that shecould pass the coronavirus on to her fiancé and other familymembers.

Related: Showdown in Congress: Employer immunity versusworker protections

Aguilar refused to sign, and a week later she was fired. "Theysaid it was my choice to sign the paper, but it wasn't really mychoice," said Aguilar, who's currently jobless and receiving $276 aweek in unemployment benefits. "I felt so bullied."

As employers in California and across the country ask employeesto return to the workplace, many have considered and some arerequiring employees to sign similar waivers, employment lawyerssay. And many employees, mostly lower-wage and minority workers inessential jobs, are calling lawyers to complain about thewaivers.

"These are illegal agreements that are totally unfair toworkers," said Christian Schreiber, a San Francisco lawyer whorepresents Aguilar and other employees.

The California State Legislature last year passed a law,AB-51, prohibiting employers from requiring employees or jobapplicants to sign away their right to pursue legal claims orbenefits under state law. The law, which also prohibits firing anyemployee for refusing to sign, is being challenged in court bybusiness groups.

Only a few employers have forced employees to sign liabilitywaivers, at least partly because these waivers likely would be heldunenforceable by courts, lawyers who represent employers say.

"Courts don't recognize them because of the unequal bargainingpower between employers and employees," said Isaac Mamaysky, apartner at the Potomac Law Group in New York City. "With so manyunemployed, people would sign just about anything to get ajob."

Another reason they are considered unenforceable: Workers whoget sick or injured on the job generally are compensated throughstate workers' compensation systems rather than through the courts,and state laws don't allow employers to force employees to signaway their right to pursue workers' comp claims, Mamaysky said.

Companies may have the right to require nonemployees working ontheir premises to sign COVID waivers. When the New York StockExchange reopened in late May, it made floor traders sign a formclearing the exchange of liability if they contracted COVID-19.That was legally permissible because the traders were not exchangeemployees, an NYSE spokesman said. He declined to say whether anytraders have become infected with the virus.

The Las Vegas-based restaurant chain Nacho Daddy, which didrequire employees to surrender their right to sue over COVID-19,reportedly fired some who refused. Following negative media coverage, Nacho Daddy removed the language thatwaived legal rights and instead had employees agree to followsafety rules such as masking and social distancing. The company didnot respond to a request for comment.

Having employees agree to comply with safety rules is a morecommon and legally acceptable approach than waivers.

"I suggest my clients go to this reasonable middle ground:Here's what we promise to you, here's what we want you to promiseto us," said David Barron, an employment lawyer with Cozen O'Connorin Houston.

Business groups hope Senate Majority Leader Mitch McConnell willmake liability waivers unnecessary. He has proposed a Senate bill with broad liability protection foremployers for five years against a range of coronavirus-relatedclaims, and says he won't back any COVID relief bill that doesn'tinclude such protections. President Donald Trump has said hesupports the liability protection.

At least 10 states already have enacted laws providing some formof immunity for businesses from lawsuits brought by employees andothers who contract COVID-19. Similar bills are pending in about 10more states, according to the National Employment Law Project. TheCalifornia Assembly is considering a liability protection bill for public K-12 schools.

Federal legislation to provide COVID liability relief foremployers should protect only those that follow applicable healthand safety guidelines, said John Abegg, executive vice president ofthe U.S. Chamber Institute for Legal Reform, which supportsMcConnell's proposal.

But even if McConnell is able to overcome Democratic oppositionand pass liability protection as part of a new pandemic economicrelief bill, that still wouldn't shield employers from lawsuitsclaiming gross negligence or reckless or intentional conduct infailing to implement COVID-19 safety precautions.

Across the country, hospitals and nursing homes, as well ascompanies like McDonald's, Walmart and Safeway, have been hit withwrongful death lawsuits filed by families of employees who diedfrom the virus. They typically cite egregious conduct that goesbeyond ordinary negligence, potentially erasing any statutoryliability relief.

Nearly 50 COVID-related lawsuits have been filed relating toconditions of employment, including exposure to the coronavirus orthe lack of protective equipment, according to data collected by the lawfirm Hunton Andrews Kurth.

In many states, alleging intentional misconduct also may allowworkers harmed by COVID-19, and their families, to file lawsuitsrather than go through the workers' compensation system, and thusseek bigger damage awards.

For instance, a suit filed in Alameda County Superior Court inJune by the widow of a longtime employee of Safeway's distributioncenter in Tracy, California, alleged that the company had concealeda COVID-19 outbreak from workers and informed them that personalprotective equipment was not recommended, contrary to guidelinesfrom federal and state authorities.

"I don't know of any jurisdiction that would allow a waiveragainst intentional misconduct," said Louis DiLorenzo, head of thelabor and employment practice for Bond Schoeneck & King in NewYork, who represents employers. "That would encouragemisconduct."

Worker advocates argue that lawsuits like the one againstSafeway should be encouraged — rather than blocked by waivers orimmunity laws — to bring to light serious public safety problems.Cases against McDonald's in Oakland and Chicago — in which workersclaimed the restaurants had created a "public nuisance" by nottaking steps to adequately protect workers and customers fromCOVID-19 — resulted in court orders in late June for thoseMcDonald's restaurants to implement safety measures such as masks,social distancing and temperature checks.

"A very tiny number of cases are being filed by workers, andthose cases are valuable," said Hugh Baran, a staff lawyer at theNational Employment Law Project. "These are the kinds of claims weshould want workers to bring."

Schreiber said he contacted the Montessori school aboutAguilar's firing, and it offered to reinstate her without havingher sign the waiver. But Aguilar declined, saying the school wasputting teachers at risk by not requiring pupils to wear masks. Theschool then offered her six weeks of severance pay, which she isconsidering.

By refusing to sign the waiver or accept her job back, she said,she was standing up for all the teachers at the school, many ofwhom have children and can't afford to lose their job.

"I liked my job and I needed the paycheck," Aguilar said. "Butmaking you sign these papers is telling you that whatever happens,they really don't care."

This KHN story first publishedon California Healthline, aservice of the California HealthCare Foundation. Kaiser Health News (KHN) isa national health policy news service. It is an editoriallyindependent program of the Henry J.Kaiser Family Foundation which is not affiliated with KaiserPermanente.

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