What TN employers need to know about new COVID-19 liability law

As Tennessee employers have phased into (and out of and back into) various stages of reopening during the COVID-19 pandemic, the primary concern for most has been keeping on-site workers as safe as possible and their businesses afloat. A concurrent worry has been what to do if an employee or customer catches the virus. Could the business be liable? As described below, a new state law may help reduce the potential exposure for employers.

Employee waivers won't suffice

During the COVID-19 outbreak, many employers are wondering if they can ask employees to sign a waiver as a condition for returning to work. Unfortunately, while waivers may provide protection to businesses in certain situations, they generally aren't a good solution for mitigating the risk from employee claims. That's the case for two reasons.

First, if an injury or illness "arises out of" and occurs "in the course of" employment, the state workers' comp law will apply. That's good news for employers because workers' comp (1) is generally held to be an exclusive remedy with limited damages available and (2) is covered by insurance already paid for. Therefore, even in a dire situation, including the death of an employee, the employer won't suffer a catastrophic economic blow.

Second, with the pandemic occurring in all aspects of society, it may be difficult if not impossible for the employee to prove he contracted the virus at work. Workers' comp claims, however, cannot be waived.