The coronavirus pandemic, more commonly known as COVID-19, is changing how businesses and customers interact. COVID-19 is highly infectious, and for some, can cause severe health issues or even death. Essential businesses have taken steps to increase customer safety, such as imposing social distancing rules and requiring customers to wear masks before entering their institutions. Although such cautious steps can greatly help reduce the spread of COVID-19, it is not a guarantee of completely preventing the spread of COVID-19. Asymptomatic persons can easily spread the disease, making COVID-19 a particularly insidious virus. Service industries—where social distancing, or even mask wearing, will impede on businesses providing services to customers—could possibly bear a sizable risk of liability for COVID-19 claims.
One prophylactic step your business can take to protect from potential future liability for COVID-19 exposure claims is to have customers sign a liability waiver. Liability waivers can be a simple, cost-effective way to protect your business, as most individuals are familiar with liability waivers. Generally, a waiver is a voluntarily relinquishment or abandonment of legal right that is signed before any damages have occurred. A waiver can be an effective way to communicate to customers that there are certain risks involved in the activities and that the customers are voluntarily assuming the risks of the activity.
The type of language involved to describe the risks include: describing the activity, that the customer understands the risks of the activities, the customer voluntarily assumes the risk, and the customer agrees to not hold the business liable for any consequences that may occur from the activity. With COVID-19 waivers, the description of the risks may include a description of the risks of COVID-19 and that the customer understands the risks of COVID-19 infection. The most important purpose of liability waivers is to help the customer clearly understand the risks they are assuming, therefore liability waivers should use unambiguous language throughout the document.
Be forewarned that liability waivers have limitations though. Most courts will not uphold liability waivers that purport to waive liability for intentional, reckless, or grossly negligent conduct. This means that a court will not enforce a liability waiver if the business engaged in intentional or reckless conduct, such as fraud or acting without the safety of others in mind. For example, a court may not hold up a liability waiver if a person who exhibited COVID-19 symptoms or tested positive from COVID-19 continued to provide services or interact with others.
As businesses begin to open up and states lift stay-at-home orders, a liability waiver is a good first step a business can take to protect against liability.
