Section 32 Waiver Agreements/General Release of Liability

It has come to the attention of the Workers’ Compensation Board (Board) that some carriers/self-insured employers and their representatives have, as a condition of entering into a Section 32 Waiver Agreement, insisted that claimants execute a separate general release of liability, the terms of which are not included in the agreement submitted to the Board for approval.

This practice is at odds with the requirement that all the terms and conditions agreed to by the carrier/self-insured employer and the claimant be included in the Section 32 Waiver Agreement submitted to the Board for approval. A Section 32 Waiver Agreement will not be binding on the parties unless it is approved by the Board (Workers’ Compensation Law [WCL] § 32[a]). 

The Board will approve a Section 32 Waiver Agreement unless it finds that the agreement is unfair, unconscionable, improper as a matter of law or was the result of an intentional misrepresentation of material fact, or if one of the parties timely withdraws from the agreement (WCL § 32[b]).

For the Board to be able to determine whether a proposed Section 32 Waiver Agreement is unfair, unconscionable, improper as a matter of law or was the result of an intentional misrepresentation of material fact, a proposed agreement submitted to the Board for review must contain all the terms and conditions agreed to between the parties. Therefore, the Board will disapprove a Section 32 Waiver Agreement if it becomes aware that as a condition of entering into the waiver agreement, the parties entered into a separate agreement or contract that contains terms which are not included in the agreement submitted to the Board for approval.

Beginning on December 6, 2021, all Section 32 Waiver Agreements submitted to the Board for approval must be accompanied by an affirmation or affidavit executed by the person who signs the agreement on behalf of the carrier/self-insured employer, or its designated third-party administrator, affirming under penalty of perjury that the agreement submitted to the Board for approval contains all the terms and conditions agreed to by and between the claimant and the carrier/self-insured employer, and that no separate agreements or contracts have been entered into by the parties that are not reflected in the agreement submitted to the Board for approval (Carrier’s / Self Insured Employer’s Affirmation [Form C-32AF]). Until further notice Form C-32-AF will be on the list of forms for which the requirement for original handwritten signatures have been suspended during the COVID-19 emergency.

Moreover, although a provision in a Section 32 Waiver Agreement whereby the claimant provides a general release to all claims against the carrier/self-insured employer in any forum or jurisdiction is not per se invalid, because of the disparity in bargaining power and financial resources between individual claimants and insurance carriers/self-insured employers, such terms will be given significant scrutiny by the Board.  

Based on the circumstances of the particular claim, the terms may be found to be unfair, unconscionable, improper as a matter of law, or the result of an intentional misrepresentation of material fact, resulting in the disapproval of the agreement.

More information

For more information, visit the updated Section 32 page on the Board’s website or email OfficeofGeneralCounsel@wcb.ny.gov with questions.