Will liability waivers protect businesses from COVID-19 lawsuits?
You can now go out to eat, go to the mall, even go to the gym in many states.
But what happens if you do, and you get COVID-19? Could you sue the gym, if you thought you got it there?
That question is top of mind for a lot of business owners as they reopen.
“Businesses are routinely telling us that they’re really concerned about the threat of being sued,” said Neil Bradley, chief policy officer at the U.S. Chamber of Commerce. “Particularly if they’re doing everything they can think to do right to protect their employees and their customers.”
A handful of states, including Utah, North Carolina and Oklahoma, have put some liability protections in place for businesses, and Republicans are pushing for a broad, nationwide liability shield in the next coronavirus relief package.
In the meantime, businesses are trying to figure out how to best protect themselves from potential lawsuits — instituting temperature checks, requiring people to fill out forms certifying they don’t have COVID-19 symptoms, and even asking customers to sign liability waivers before they walk in the door.
Luke Ritchie, an attorney with Moye White in Denver, Colorado, is encouraging businesses he works with to use liability waivers. In part because of the ever-changing patchwork of safety guidelines they have to try to follow — CDC guidelines, state guidelines, city guidelines, all of which may be different.
“It’s not easy for a business to make sure that they’re following best practices,” Ritchie said. “And so a COVID-19 release or waiver is going to be an additional tool that will help protect you and it’ll help protect the company.”
He’s starting to see them pop up at all sorts of places, from restaurants to doctors’ offices to gyms. Even his massage therapist required him to sign one recently, when he went online to book an appointment.
“I was impressed that my therapist had given it enough thought to include that,” he said.
The Trump campaign is also requiring anyone going to the president’s rally in Tulsa, Oklahoma on Saturday to agree not to sue the campaign if they get the virus.
“By clicking register below, you are acknowledging that an inherent risk of exposure to COVID-19 exists in any public place where people are present,” the registration form says. “By attending the Rally, you and any guests voluntarily assume all risks related to exposure to COVID-19.”
Whether such waivers will actually protect businesses from lawsuits or not is an open question. Laws vary state to state.
In Colorado, Ritchie said, “we have a long history of enforceable liability waivers, and that stems from the recreational industry. Whether it’s livery, where you’re jumping on a horse to take a trail ride, or getting on a raft on the Arkansas River, or of course the most famous is skiing. For all of those activities, you drop your kids off at ski school and you’re signing a liability waiver on their behalf. And in Colorado, those are enforced.”
In other states, like California, “they’re generally not really enforceable,” said Coby Turner, an attorney at Seyfarth Shaw LLP. “That doesn’t mean companies aren’t using them, and there’s not really a harm in it, but it’s not going to do much if it was ultimately challenged, in most cases.”
Having a customer sign a liability waiver may be more of a deterrent than anything else, and a reminder of the risk associated with going into a restaurant or a salon or a store in the age of COVID-19.
If someone signs a waiver, gets sick and then challenges it in court, attorneys say, a lot may come down to what they were doing in the business — whether they needed to be there, or not.
“I don’t necessarily think there’s going to be a ton of sympathy if you decide to, for example, go out to a theme park and you contract COVID,” Turner said. “I don’t know that a judge or jury is going to have a ton of sympathy for you in those circumstances. But, it hasn’t been tested yet.”
Also untested is whether general liability waivers, like you’d see on the back of a ticket to Disneyland or a baseball game, will protect a company in the case of a coronavirus outbreak.
Ritchie expects all of these questions will end up in court eventually.
“I do think there will be a wave of litigation on all of these fronts, dealing with COVID-19,” he said. “And from the business owner’s perspective, you want to be able to say that you were being prudent, that you were exercising all cautions. And the way that you do that is you take the extra step.”
Ultimately, the best way for businesses to protect themselves, according to Turner, is by doing everything they can to keep their employees and customers healthy — requiring face masks, enforcing social distancing, sanitizing often, and communicating openly about both their safety precautions and the ongoing risk.
For a lot of business owners, that is not reassuring, given how many competing health and safety guidelines are out there right now and the fact that, until there is a vaccine, there is no foolproof way to prevent the virus from spreading. That’s why the Chamber of Commerce is pushing for some kind of broad, nationwide liability protection for businesses that do their best to comply with safety standards.
“This is an unprecedented situation. There’s no playbook for this,” Bradley said. “They simply want to have confidence that if they follow the guidance from public health officials, if they take meaningful positive steps to protect the health of their employees and their customers, that a year from now they’re not going to be second guessed by a trial lawyer who says, ‘you should have done even more.’”
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