Often, different states have different rules for waivers, but one thing is consistent across the country: when it comes to thinking about using waivers for your employees, businesses cannot have workers waive Occupational Safety and Health Administration rights or liability. OSHA asserts that the health and safety of workers are an employer’s responsibility, and ones that cannot be waived.
In this article we will address 3 main points:
The Occupational Safety and Health Administration regulates workplace safety, performing scheduled inspections of worksites, investigating complaints and accidents, and creating emphasis programs that focus on trending safety problems. OSHA enforces a regulatory system that covers most industries with general rules and employs specific rules for some industries.
Some states use a state plan to regulate workplace safety, meaning that federal OSHA monitors a state-run agency’s workplace safety and health program, and the state program regulates the businesses in the state. OSHA requires that state plans are at least as effective as OSHA in protecting workers and in preventing work-related injuries, illnesses, and deaths.
Usually, state plan states enforce most federal regulations, making exceptions only for a handful of rules that are stricter or more specific than the federal rules.
Regardless of federal or state enforcement of workplace safety rules, workers cannot waive their rights. Federal OSHA has specifically addressed liability waivers for employees in several contexts, always refusing to allow their use.
The best information concerning OSHA’s view of waivers comes from their guidance on what they allow in settlement agreements between businesses and whistleblowers. A settlement agreement establishes the rights of parties, and often its terms contain waivers of rights. OSHA will not allow agreements or liability waivers that prohibit, restrict, or otherwise discourage protected activity, including:
Together these prohibitions mean that OSHA does not allow employees to waive rights that help it enforce its regulations. OSHA also prohibits waivers that seek to remove employer duties that regulations mandate.
Issuing guidance concerning waivers of regulatory duties, OSHA has consistently rejected their use. The guidance specifically addresses waivers concerning workers’ right to:
None of these situations allows employers to waive any regulatory requirements.
Where liability waivers for employees don’t work, businesses should educate workers on how to work safely. Businesses should train workers to safely perform their assigned tasks and to use any personal protective equipment associated with those tasks. Additionally, workers should have stop-work authority, which allows them to stop any tasks that are unsafe.
Reporting safety concerns is important for workers, and employers should welcome such information without retribution, and notify workers of that policy of readily receiving feedback. The details of the strategy will depend upon the situation, but information and training can replace waivers to avoid OSHA citations and other enforcement action.
H2: Other Employee Agreement Documents
While a business can’t have their employees waive their right to a safe work environment, there are a number of other documents that can be used to help protect the business from a variety of legal and professional issues.
Closest to the current topic are situations like vaccines—in these cases, informed consent forms are allowed and can protect businesses from legal actions based on claims such as “I didn’t agree to that,” and “I didn’t know it was an option.”
Other documents a business might have employees sign (that OSHA doesn’t bar you from) include:
For all of these examples (and for others we didn’t include here), you can simplify the processes of administering, storing, and organizing these documents by making them digital. Software solutions like WaiverSign allow you to convert paper documents to digital templates that can be administered online, and signed by computer or mobile device.
Properly drafted liability waivers can be good tools for businesses, especially to prevent tort claims. But OSHA enforces its standards and protects worker rights without considering waivers, and may even allege that an employer violates the law by attempting to have workers sign unenforceable waivers.
Whenever businesses encounter laws that OSHA and other government agencies enforce on behalf of workers, they should know that using waivers is not always the best solution.