Liability waivers are documents businesses may choose to have their clients, customers and/or patrons sign. They generally state that patrons will not bring a lawsuit against the business in the event they receive personal injury, including illness, from entering the business establishment or participating in a service the business provides.
In light of the COVID-19 pandemic, businesses are looking for manners of limiting their liability. Despite mandatory safety measures—such as six-foot social distancing, limited capacity and mask wearing—patrons could still contract the virus. In turn, your business should be concerned about patrons who contract COVID that may try to hold it liable.
Lawmakers are struggling to figure out how to protect patrons while encouraging businesses to reopen and stimulate the economy. One option is having state governments pass legislation that immunizes businesses from suits related to COVID. Thirteen states, including New York, have passed COVID legislation that protects health care providers and other businesses from liability arising from patrons contracting COVID. Twenty-three state governors ordered similar protections. These laws vary from state to state and may continue to adapt as the pandemic progresses.
A proposed federal law would create a safe harbor for businesses, schools and nonprofits that follow the respective COVID guidelines. The law would retroactively begin in December 2019 and potentially extend through October 2024. However, there is concern that completely immunizing businesses from liability would protect businesses that are unfairly eluding their state’s COVID guidelines.
A more individualized approach is allowing businesses to have patrons execute liability waivers. In varying ways, liability waivers limit patrons’ legal remedies against a business if they believe the business is responsible for them contracting COVID. The waivers act as an additional layer of protection for businesses that are trying their best to abide by the ever-changing federal, state and local regulations during this global crisis. Unlike legislative immunity, the decision to relinquish the patron’s power to sue the business is in the hands of the patron themselves, rather than the legislature. Thus, patrons can individually decide which businesses they are comfortable executing waivers with.
Whether you have a business that may benefit from implementing COVID liability waivers, or whether you are a patron asked to sign one of these waivers, you may want to consider the following.
The enforceability of COVID liability waivers is uncertain. While waivers generally state that the patron will not bring a lawsuit against the business, there are several factors that affect a waiver’s enforceability, including the location of the business, a particular state’s history of enforcing waivers, the type of waiver, and the language of the waiver itself. Although enforceability of a COVID waiver can never be guaranteed, a waiver may be beneficial regardless by serving as a deterrent for potential lawsuits.
Despite properly executing waivers, businesses may still be on the hook for COVID-related claims if they fail to operate in compliance with all federal, state, local, and CDC guidelines. Be sure to stay up to date on the operating guidelines that impact your business, and keep in mind the guidelines may shift as the pandemic progresses.
Virginia, Louisiana and Montana will not enforce COVID waivers, and Connecticut rarely recognizes liability waivers. Several states require the business and the patron sign the waiver in order for the waiver to be enforceable. In such states, posting a sign on your door or having a customer check a box on a form will not suffice. Research your state’s liability waiver policy and obtain an attorney’s professional opinion regarding waivers in your state before deciding which type of waiver is most likely enforceable (if at all).
Remote delivery of goods limits liability for the business and risk for the patron. Remote options include allowing for online purchase, curbside pick-up and/or delivery of your products, or a virtual meeting or phone call if your business provides a service.
COVID waivers for your business’s employees are not enforceable. Rather, an employee who contracts COVID in the course of employment can make a worker’s compensation claim. The Occupational Safety and Health Administration (OSHA) has made COVID a reportable injury if an employee contracts the virus while working for a business that neglects to comply with appropriate safety guidelines. Again, this emphasizes the importance of adhering to all guidelines applicable to your business, as well as clearly articulating the relevant COVID policies to employees and issuing the employees copies of such policies.
Though waivers for employees may not be enforceable, they might limit liability against independent contractors and vendors. Like for employees, businesses should explain and provide copies of its COVID related policies to contractors and vendors. Further, businesses may choose to alter their current vendor and independent contractor agreements to include a COVID liability waiver.
The language used in a COVID waiver may greatly impact its enforceability. The language must be clear and specific to your business. It is important to avoid using waiver templates found online or attempting to draft the language yourself. Consult with a business law attorney in your state to assist with waiver drafting and provide advice for your individual business needs.
A significant question arises regarding COVID waivers: how can someone prove where they contracted the virus? Currently, it is practically impossible for anyone infected with the virus to definitively prove the cause of infection. As technology continues to evolve and scientists discover more about the novel coronavirus, there may be a way to trace the spread of the virus and confirm the site of contraction. However, this is unlikely, making fault extremely difficult to prove.
As previously mentioned, there are alternatives to having patrons sign liability waivers, mainly, ensuring compliance with state COVID guidelines. Before deciding to reopen, business should have a plan to ensure compliance with recommendations and orders from their state and local authorities, the CDC, EEOC and OSHA. Businesses should clearly explain these recommendations and orders to their employees and display measures of compliance to their patrons. Further, businesses should ensure their employees have copies of the businesses’ COVID-related policies and reward employees who report non-compliance.
Utilizing COVID waivers may stimulate the economy and protect small businesses from permanent closure by allowing businesses that were previously concerned with potential COVID-related lawsuits to reopen. On the other hand, waivers, like blanket legislative protections, may disincentivize businesses from closely paying attention to safety guidelines and strictly implementing them. Whether or not you use a waiver for your business, your primary focus should always be to ensure adherence to all state, local, federal and CDC guidelines. As a patron, you should always consider the risks of signing a liability waiver prior to execution, even if your state does not routinely enforce them.
If you are a business looking to re-open safely with COVID waivers for patrons, or an employee or patron asked to sign such waiver, make sure you research the guidelines in your area and consult with counsel before drafting or signing a COVID waiver.