Maybe you’re thinking “oh God, another COVID article”?

And if your business is closed, or isn’t customer-facing, or etc., feel free to skip this one.

But, if it’s not, this is timely stuff.

I was recently quoted in Reuters and the NY Post, as well as a few other places, about COVID waivers (here and here) and so, I thought it might be a good time to provide a little guidance on the topic. Background As you know, COVID-19 is a disease caused by the novel coronavirus, SARS-CoV-2. In the majority of people, COVID does not cause significant harm; but in a nontrivial minority of people, it can cause death due to respiratory failure, organ failure, or cytokine storm, and/or severe long-term complications including blood clots leading to brain, heart, or other organ damage. In short, COVID is no picnic. Plaintiff attorneys, unsurprisingly, are very much paying attention. If you do a search for “can I sue someone for COVID” or “COVID negligence lawsuit” or any kind of similar search, you’ll no doubt see what I’m talking about. And that sort of makes sense. For plaintiff attorneys whose regular diet is car accident lawsuits (and those cases are down drastically since folks are driving a whole lot less nowadays), they’ve got to make up that revenue somewhere. So, why not COVID? Given that most courts are still pretty gummed-up at the moment and many of these kind of lawsuits are already being filed, I think it’s safe to say that we’ve only seen the tip of the iceberg. Many businesses have begun requiring customers to sign COVID waivers as a condition to enter the premises (if you haven’t been asked to sign one yet, chances are good that you will nonetheless encounter one in the future). The idea – obviously – being to limit potential future liability. But, can a waiver really help with this? As ever, it depends. What a Waiver Can’t Help With There are many ways to circumscribe (not eliminate!) potential liability here. One of those ways – the one I’m going to talk about today (as you probably guessed from the title) – is the proper use of waivers. BUT FIRST, you need to know that using a waiver isn’t a silver bullet. There are plenty of problems that a waiver won’t solve. First, it might be a lot LESS helpful if an employee attempts to sue (depending upon specific laws in your area, you may not be able to enforce a waiver against an employee, or certain other classes of people). In fact, it may do you more harm than good to require employees to sign such a waiver. For example, (i) employees generally cannot waive in advance their right to file workers compensation claims (which system will often pre-empt common law claims for injuries), (ii) waivers of EEO and NLRA rights are also generally invalid, (iii) asking an employee to sign a waiver may end up generating more distrust and cause the employee to question the employer’s efforts to control COVID. Second, a good waiver does not absolve you from responsibility for compliance with law and maintaining good sanitation procedures, contact tracing, and other “best practices” for controlling outbreaks of COVID-19. Third, there may be other specific quirks of your state law that affect what may or may not be waived. Some states take a dim view of these kinds of waivers, and courts will disfavor the agreements; enforcing an agreement there can range from merely difficult to virtually impossible. Other states have particular statutes that may limit the scope of a waiver, or require the waiver to be drafted in a very particular way. Fourth, in most jurisdictions, even a well-drafted waiver will NEVER be enforced with regard to intentional conduct or reckless conduct (you can waive “mere” negligence, and sometimes you can waive gross negligence). Fifth, a vague or difficult-to-understand waiver is not much better than no waiver at all; a well-drafted waiver must set forth the claims being waived with a fair amount of specificity in order to be enforceable, as well as being understandable and conspicuous. Which leads to the sixth point. … which is that using a waiver may actually end up scaring away some business, or may be off-putting for some customers. Tread carefully. Now, maybe I have talked you out of using a waiver (which is fine). Or maybe I haven’t (which is also fine). Either way, different businesses will have different answers to this question. What a Waiver CAN (Probably) Help With Potentially, everything not listed under the section above.
  • Customers entering the premises.
  • Delivery drivers, independent contractors, and vendors entering the premises.
  • Anyone other than an employee entering the premises
While waivers will not be able to give absolute immunity, they may limit or prevent certain liability. They also tend to highlight safety risk to customers, something that almost all customers can appreciate. Further, waivers tend to discourage people from taking legal action. The mere presence of a waiver may have the effect of preventing many customers from even filing a claim to begin with. Ultimately, they are not a bulletproof measure against lawsuits, but they can provide an added layer of protection. When You May Want a Waiver You may want to have a waiver for customers or patrons if your business involves some relatively-higher level of risk than average. What exactly those relatively-higher-risk businesses are, may continue to evolve over time as our understanding of SARS-CoV-2 deepens. However, at this point in time, it appears that the higher-risk situations are those in which people are in enclosed spaces, are in close proximity to one another, remove their masks, and/or touch many of the same items. My tentative list for such businesses:
  • gyms
  • hair salons and massage studios
  • restaurants
  • event venues (such as concerts and sports)
  • movie theaters
  • hotels
While your business may not fall under one of these umbrella categories, you may still want to look into adopting a waiver. Frequently, a waiver will inspire some sort of confidence in customers as at least being cognizant of the ongoing COVID-19 problem. Sounds Awesome, How Do I Get One? You can draft your own, but ideally you will want to consult with an experienced corporate attorney or business law attorney to help you identify your particular risk profile. In addition to a waiver, you will definitely want to develop a safety and sanitation program to implement alongside your “sign here” program. Given the tumultuous times that surround us with COVID and business shutdowns and so forth, I have decided to include a sample waiver that you might want to read and consider using some of the terms. This document is provided strictly as an example; it is not legal advice and everyone’s situation may vary. You can download it below. Again, you are cautioned to consult an attorney before using this form, as it may not be enforceable under all circumstances or in all jurisdictions. Additionally, your particular business may have risks or concerns not addressed in this sample. SAMPLE COVID WAIVER