Waiving Workers’ Compensation in Transportation Agreements: Like Taking a Bullet After Being Stabbed

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Anyone reviewing a transportation agreement in the past few years surely noticed an uptick in the number of proposed provisions attempting to “waive workers’ compensation immunity.” The waiver typically reads as follows: “[Employer] expressly waives any immunity from suit with respect to injuries to [Employer’s] employees as a result of any payments made by [Employer] to such employees or under any applicable workers' compensation statute or similar law.”

Most states, if not all, have enacted a comprehensive set of workers’ compensation laws. A critical component of these laws is the idea of workers’ compensation immunity. Workers’ compensation immunity provides tort immunity to an employer when an employee is injured within the course of their employment. Put simply, employers can treat compensation for work related injuries as a routine cost of doing business which can be budgeted for without fear of any substantial tort judgments (with a limited exception for intentional torts).

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