COVID creating increased interest in waivers, but enforceability difficult in some areas

With a global pandemic making any personal interaction a possible health risk, a budding issue for lawyers is to what extent waivers can be used to limit liability for COVID infection.

“I don't think these principles have necessarily been tested yet, but certainly, we're seeing an influx in the amount of waivers being generated by all sorts of institutions in connection with the risks posed by COVID,” says Jason Mangano, a commercial and insurance litigator also involved with class actions and insurance coverage counsel.

The issue is cropping up in the workplace, says Marc Kitay, an employment and labour lawyer and partner at Whitten & Lublin. Many employers want to protect themselves by having their workers waive their right to sue if they contract COVID on the job.

But waivers are becoming much harder for employers to use and enforce on their employees, says Kitay. Employees are boxed-in by four walls of remedial legislation – the Employment Standards Act, Occupational Health and Safety Act, Workplace Safety and Insurance Act and the Ontario Human Rights Code. Those statutes are being strengthened as the courts look to balance bargaining power between employer and employee, he says.

“Any measure that an employer pursues that would be designed to have the employee give up certain rights must not break out of those walls… Those are not obligations that an employer can contract out of, and protections under that legislation are not rights that an employee can waive,” says Kitay, who represents employees in workplace disputes, such as dismissal and human rights claims, with a focus on litigation.

Kitay and Mangano will be among the panellists in an upcoming webinar, presented by Canadian Lawyer Magazine. Using waivers effectively – Practical considerations to protect your organization from liability will take place Wednesday, Jan. 27 at 12:00 noon EST.

The use of waivers is also becoming increasingly constricted in the area of employee severance, says Kitay.

Employees typically have an implied contractual right to a generous severance – what Kitay calls the “Cadillac” of severance provisions. But under the Employment Standards Act, there is also right to a “bare-minimum” amount, more equivalent to “bicycle,” he says. For an employer to have their worker waive their Cadillac entitlement and bind themselves to a bicycle, they must sign a contract to that effect.

“And the way they do that contract is subject to such an abundance of litigation and so much nit-picking in the way these contracts are written, it's gradually becoming more and more impossible,” says Kitay.

With the courts “cracking down,” what would have been a valid contract to waive a Cadillac severance a decade ago has no chance of being held up in 2021, he says.

Some have cited the 2017 Ontario Superior Court decision, Anderson v. Confederation College, as impacting a waiver’s scope of applicability, says Mangano. While the issue is “super contentious,” some lawyers argue the decision stands for the principle that basic negligence cannot be waived.

“[The decision] underscores the importance for a waiver to be very clear, and very precise with respect to its applicability,” he says.

“Catch-all waivers are probably going to be problematic on a go forward basis.”