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Proposed S8587 Declares Agreements Exempting Employers From Liability for Negligence Related to the COVID-19 Pandemic Void and Unenforceable

Author: Kiley McCarthy Connolly

Guest Editor: Jenn N. Crittondon

November 2, 2020 3:00pm

In proposed New York Senate Bill S8587, the legislature is considering passing a law which declares agreements exempting employers from liability for negligence related to the COVID-19 pandemic void and unenforceable.[1] The bill is sponsored by Senator Liu, Senator Biaggi, and Senator Carlucci and was introduced to the New York Senate on June 16, 2020.[2]

The proposed legislation aims to amend the general obligations law relating to employers’ exemption from liability for negligence specially concerning an employers’ “handling of measures” related to the pandemic.[3] The bill’s self-described purpose is, “to ensure that employers will still take the necessary steps to protect their employees from the COVID-19 pandemic even if they have signed a waiver of liability.”[4]

The bill’s authors acknowledge New York businesses have begun to re-open.[5] Further, these businesses reopening are requesting, and sometimes requiring, their employees and independent contractors to sign waivers of liability to return to work.[6] The authors continue to explain such waivers should not be a “license for businesses to neglect their employees safely and operate recklessly” regarding the pandemic.[7]

The legislation continues to clarify, the provisions of this bill “shall not” preclude an employer…

“or hiring party from requiring indemnification for damages arising out of personal injury or death caused by or resulting from the negligence of a party other than the employee, independent contractor and inter, whether of not the employer or hiring party is partially negligent.”[8]

If passed, S8587 will have a long lasting effect on the general liability lawsuits arising out of this pandemic. While there are many things uncertain about our world in this pandemic era, an influx of general liability cases related to how various parties handled the pandemic is inevitable.

New York Senate Bill S8587 has been introduced, reported out by a committee, and is now on calendar for consideration by the full New York Senate. In New York, if a majority of the Senators approve the bill, it will be sent to the Assembly.[9] In the Assembly, the bill will go through essentially the same process as it did in the Senate.[10] If the bill is approved in the Assembly, without any further amendments, the bill will go on to Governor Cuomo’s desk for signing.[11]

As businesses continue to open, they seek innovative ways to address public health concerns related to the COVID-19 pandemic.  New York’s legislature is stepping in to implement legislation to distribute the risks inherent with operating during a pandemic.  The full impact of this legislation will not be felt for several years when the inevitable litigation is resolved.

 

[1] https://www.nysenate.gov/legislation/bills/2019/s8587

[2] https://www.nysenate.gov/legislation/bills/2019/s8587

[3] https://www.nysenate.gov/legislation/bills/2019/s8587

[4] https://www.nysenate.gov/legislation/bills/2019/s8587

[5] https://www.nysenate.gov/legislation/bills/2019/s8587

[6] https://www.nysenate.gov/legislation/bills/2019/s8587

[7] https://www.nysenate.gov/legislation/bills/2019/s8587

[8] https://www.nysenate.gov/legislation/bills/2019/s8587

[9] https://www.nysenate.gov/how-bill-becomes-law-1#:~:text=Passing%20a%20Bill,is%20sent%20to%20the%20Assembly.&text=If%20the%20bill%20is%20approved,goes%20on%20to%20the%20Governor.

[10] https://www.nysenate.gov/how-bill-becomes-law-1#:~:text=Passing%20a%20Bill,is%20sent%20to%20the%20Assembly.&text=If%20the%20bill%20is%20approved,goes%20on%20to%20the%20Governor.

[11] https://www.nysenate.gov/how-bill-becomes-law-1#:~:text=Passing%20a%20Bill,is%20sent%20to%20the%20Assembly.&text=If%20the%20bill%20is%20approved,goes%20on%20to%20the%20Governor.

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