Author: Kay Jones
Businesses, schools and event centers have historically used waivers and hold harmless agreements to help insulate them from potential liability. As businesses and schools begin to reopen, waivers and hold harmless agreements are beginning to include COVID-19 language. To be enforceable, waivers need to meet all the necessary legal requirements. Additionally, it is unlikely they will provide complete immunity from lawsuits to organizations because waivers do not apply to claims of intentional conduct or gross negligence. If organizations aren’t complying with local, state and federal health and safety guidelines concerning COVID-19, they may still be found liable.
A COVID-19 waiver must illustrate the potential risks of exposure to the virus even after preventative measures like masks, washing hands and social distancing are taken. By signing the waiver, the signer typically agrees to release the organization from any negligence claims that arise in relation to COVID-19. The waiver must be easily understandable by the individual signing it. Although waivers are readily available on the internet, legal experts recommend any waiver that is to be put into use should be reviewed by an attorney to make sure it is enforceable in the state(s) in which it will be used and matches the specific activities of the organization. Even if these measures are undertaken, there is no guarantee a waiver will be considered enforceable. The courts in many states will not enforce waivers and others have indicated the liability a waiver may address is a question for a jury. Some legal experts believe if a nonprofit organization or business is complying with local, state and federal CDC guidelines, a waiver is not needed.
Is there relief on the way? A new federal law is being proposed to create some protection against lawsuits for businesses and nonprofit organizations as long as they follow federal or state guidelines for COVID-19. Arguments for and against legislation rage on and agreement has not been reached as to the best solution. Many states have issued executive orders limiting the liability for health care providers and some businesses.
Proving the exact manner or place the coronavirus exposure occurred is another matter. Some early lawsuits have been dismissed because exposure could not be pinpointed to an exact location or incident. Contact tracing solutions like the one offered by Gallagher Bassett can help determine where employees may have come into contact with COVID-19 and help curb further spread by notification to impacted individuals. For more information visit: Gallagher Bassett Employer Contact Tracing and Gallagher Bassett Contact Tracing informational brochure.
COVID-19 related waivers will no doubt remain a topic for further review and discussion as more organizations open up. Please note any information presented in this article is not to be construed as legal advice.
