Do COVID-19 Liability Waivers Hold Up in Court?

COVID 19 Liability Waivers

Before COVID-19 swept the globe, liability waivers were used to protect businesses against inherently risky activities, such as riding roller coasters, working out, skydiving and whitewater rafting. Today, however, a growing number of organizations are presenting COVID 19 liability waivers to consumers and employees alike, and for activities as everyday as getting one’s haircut, sending one’s kid to school or going to work. As the world reopens and as the virus threatens to make a comeback, many people want to know, are COVID-19 liability waivers enforceable?

What Are COVID-19 Liability Waivers?

COVID-19 liability waivers waive a person’s right to sue a business or establishment should he or she contract the virus by participating in or enjoying said establishment’s activities or services. For example, if you chose to eat out at a newly reopened favorite restaurant and then develop COVID-related symptoms five to seven days later, you may be tempted to sue the establishment for transmitting the virus to you and other unsuspecting patrons. However, you may have forfeited this right before being seated via a liability waiver.

As you can imagine, owners of small businesses who were forced to close shop due to the virus are already under significant financial strain. Though many are willing and ready to reopen their doors, they are hesitant to do so if it means leaving their establishments wide open to COVID-related lawsuits. The answer to many an owners’ dilemma is a liability waiver. In addition to offering up these waivers to patrons and employees, many of these same businesses refuse entry to customers and employees who refuse to sign.

Are COVID-19 Liability Waivers Enforceable?

Whether you are asked to sign a virus-related waiver or you wish to implement one of your own, you may wonder about the enforceability of such contracts. If you do get sick after signing a waiver, can you really not pursue compensation? On the flip-side, if a patron or employee threatens to sue you, can the signed waiver protect you against a lawsuit? The answer depends on a few factors.

Though the enforceability of liability waivers is governed by state law (which vary considerably), a jurisdiction is more likely to enforce a COVID-19 waiver if it contains language that is applicable to state law, is conspicuous and clearly identifies the claims being waived.

Language That Is Applicable to State Law

Though most states take more or less the same stance to liability waivers (they are enforceable, as parties should read before they sign), some, such as Virginia and Montana, have a negative opinion concerning preinjury releases of liability. In these states, COVID-19 liability waivers are unlikely to be enforced, regardless of how well-written they are.

Other states, while accepting of preinjury releases of liability, require those releases to include precise language in order for them to be enforceable. Yet others require each provision of the waiver to be in line with specific state statutes. Before you sign a waiver or before you ask someone else to do so, make sure that you thoroughly understand the specifics of your state’s laws.

Conspicuousness

Signing parties should be able to read a waiver and understand exactly what it means. Jurisdictions that do recognize liability waivers generally agree that the more conspicuous the language, the better. If you hope to mitigate the financial risk your company faces by reopening, include clear headings in your waiver, use bold font where appropriate, separate the COVID-19-related provision apart from others and require separate acknowledgment of it. You should also top the document with something straightforward, such as “READ CAREFULLY BEFORE SIGNING. SIGNING AFFECTS YOUR LEGAL RIGHTS.”

Identifies Claims Being Waived

Many states require liability waivers to expressly state what types of claims injured parties may not file. In the context of COVID-19, for example, the waiver must explicitly state that an injured party cannot sue for damages related to COVID-19. If the language is vague and merely says “illness,” courts may not uphold the waiver.

Are Waivers Enforceable in Cases of Gross Negligence?

While a COVID-19 liability waiver can protect a company against many virus-related claims, it cannot, in most states, protect a company against claims that arise out of gross negligence or violations of the law. For example, if several patrons of an establishment contract the virus because of the business’s failure to enforce the six-feet social distancing protocol or to implement requisite sanitation measures, a plaintiff may have a case.

The same holds true if a business owner was aware that one or several employees was sick but allowed them to continue to work in close quarters with others regardless of this knowledge. In short, for a waiver to hold up in court, the drafter must have acted with a reasonable level of care.

How Must Liability Waivers Be Used in Conjunction With Other Safety Efforts?

Business owners should not use liability waivers in lieu of state- and federal-recommended COVID-19 safety procedures. While those vary from industry to industry, business owners should familiarize themselves with industry-specific guidelines and use them to mitigate risk as much as possible. If a business fails to take health and safety seriously, the courts may rule that it is liable for the spread of the virus, COVID-19 liability waiver or not.

Work With a Knowledgeable Lawyer

The impact of COVID-19, on both individuals and society as a whole, is unprecedented. Because of how great the consequences of contracting the illness can be — which include loss of income, loss of consortium, extravagant medical and hospital bills, and even death — people stand a lot to lose should they contract it. Understandably, affected people want to hold some person or entity accountable for those losses, especially if they themselves acted with extreme care.

On the other hand, businesses also stand a lot to lose if a patron or employee falls ill, as the courts may hold those businesses financially liable. Financial liability for COVID-19-related damages may only compound the losses caused by the months’ long closures. Naturally, brands are taking steps to mitigate loss by using liability waivers.

Whatever boat you are in, it is important that you understand state laws as they pertain to liability waivers. It is also important that you understand your rights. An experienced attorney can help with both. Submit a request online or call us today at (866) 345-6784 to get in touch with an experienced lawyer in your area!

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