This blogpost describes COVID liability waivers. Jeremy Byelin (Vice President, Legal and Regulatory Affairs, Shared Assessments) shares his view on the potential benefits of this legal safeguard.
As COVID cases continue to rise in many areas of the world, businesses face substantial risk in simply operating as normal. To alleviate this risk, businesses have employed a variety of safeguards, such as requiring masks or face coverings, plexiglass shields, and strict capacity limitations. Beyond those physical safeguards, some businesses may be using or at least contemplating legal safeguards; specifically, COVID liability waivers.
These waivers generally come in two legal flavors: contractual and assumption of risk.
A contractual COVID liability waiver is fairly straightforward. A business creates a contract with its customers and/or its employees that prohibits the latter from suing the former for any COVID injuries caused by the negligence of the former.
An assumption of risk waiver is based on the legal theory of the same name that allows a negligent tortfeasor to escape liability for an injury if a plaintiff had voluntarily assumed the risk of that injury prior to engaging in the activity that caused the injury.
President Donald Trump’s reelection campaign famously employs such waivers for its in-person campaign events. As a part of registering for an event, the Trump campaign requires attendees to acknowledge “that an inherent risk of exposure to COVID-19 exists in any public place where people are present,” and assume “all risks related to exposure to COVID-19.”
Effective waivers must also explicitly state that negligence claims are barred as part of this assumption of risk. It’s also important to note that liability waivers don’t provide perfect protection. Generally, these waivers offer no protection against claims of gross negligence, recklessness, or intentional wrongdoing.
Should your business use liability waivers?
There are many issues to consider when making this decision.
First, as I just mentioned, liability waivers do not protect against gross negligence and recklessness. What’s the difference between negligence and gross negligence when it comes to COVID-19 protections? And what is considered “reckless?”
I wish I could tell you. The law in this area is uncharted territory because of the scant case law on COVID liability. And you don’t want your business to be one of the first to test these legal waters. Besides venturing into unknown — and almost certainly expensive – legal territory, the optics of defending your business from claims that employees or customers got COVID because of your business are…not good.
That leads into the next consideration: the potential of bad publicity. How does it look for a business to force its employees and/or customers to sign away rights to sue if they contract COVID because of it? Perhaps your business could be discreet about it, but there is always a chance that such a waiver could make the rounds on social media – or worse, the news. Are the benefits worth the risks?
And that brings us to the final consideration: are COVID liability waivers actually worth it? To better put this question into context, negligence lawsuits against businesses face an uphill battle because of a little thing called causality, a requisite of any negligence suit. Without causality, there’s no legal connection between an act of negligence and the injury.
Causality is a problem for COVID suits because of the practical difficulty of presenting evidence that an employee or customer acquired COVID from the business. Moreover, in those situations where a business is clearly responsible for spreading COVID, it’s very likely that a greater degree than ordinary negligence was at play, and a liability waiver wouldn’t do any good anyhow.
Assuming that causality could be established with evidence and the COVID injury were due to ordinary negligence, a liability waiver wouldn’t insulate the business from liability from a third-party infected by the customer or employee, since they never signed away their legal right to sue.
So, unless your business is in a very particular set of circumstances where liability waivers will actually have some tangible benefit – or unless case and/or statutory law is further developed to make such waivers more worthwhile – COVID liability waivers likely aren’t worth using.
Instead, focus your efforts on those physical safeguards that slow the spread of both the virus and claims of negligence.