Today Federated Insurance is sharing one our "HR Questions of the Month" regarding employment-related practices liability issues.
Question: Can the company request an employee, including a pregnant worker, to sign a waiver from liability, due to potential danger of on-the job injury sustained or harm sustained, at the hands of a mental health patient who is a resident of our facility? Would a request for waiver of liability expose the company to pregnancy discrimination, based on terms of employment, work conditions, or any other employment terms?
Response: We do not recommend requiring (or even requesting) that employees sign any sort of "release" or "waiver" against future workers' compensation claims. If an employee sustains an injury or illness within the course and scope of his or her employment, generally he or she would be entitled to exercise his or her rights to file a workers' compensation claim. An employee cannot be required as a condition of employment to waive this right (and even if he or she did sign such a waiver, we are not aware that it would enforceable). Certainly employees should be informed at the outset of employment or any time their position or duties changes of the nature of the job, and employers can take measures to ensure that employees are fit for the jobs for which they are hired or into which they are transferred, promoted, etc.. The employer must be careful when making inquiries about medical or health conditions, however, to avoid violating the Americans with Disabilities Act. Please see the guidance published at http://www.eeoc.gov/policy/docs/guidance-inquiries.html and http://www.eeoc.gov/policy/docs/preemp.html for information relative to when inquiries are, and are not, permitted under federal law.
The employer must of course ensure that it protects the safety and security of its employees (although admittedly some risks may not be able to be avoided, such as those that may occur at the hands of mental health patients who may exhibit unpredictable behavior, and with whom employees may work or come into contact). The employer certainly should consult with its workers' compensation and general liability carriers relative to these risks and how best to protect employees who are exposed to them.
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