October 22, 2020
The JUSTLAW Team

COVID-19 Waivers: The Benefits and Drawbacks

COVID-19 has re-shaped the way Americans conduct business. In an age where masks, social distancing, and personal hygiene separate the sick from the healthy, we all have a responsibility to each other to be extremely careful in our daily lives. That same responsibility applies to businesses all over America, as we begin to withdraw from state quarantines. However, businesses have a valid concern of “COVID” liability with every hour of operation they are open to the public. If a customer, vendor, or other constituents contract COVID after visiting a business, they may sue that business or run to social media to damage the business’s reputation. JUSTLAW is deeply concerned about this unfair treatment of businesses. Therefore, we urge all businesses to draft COVID-19 waivers.

What is a contractual waiver?

Before we dive into COVID waivers, we should first introduce the concept of a waiver. Liability waivers are contractual provisions by which one party agrees to surrender their right to sue for particular injuries. Generally, liability waivers are governed by state law. Therefore, a waiver in New York may look entirely different from a waiver in Kentucky.

Ordinarily, businesses use liability waivers to protect themselves against customers, vendors, or other patrons who may come into contact with them for business purposes.

Why should businesses have a COVID-19 waiver?

As you open up for business in light of your local state governments lifting quarantine restrictions, you begin to open your business to liability. Therefore, all businesses should be mindful of the impact the spread of COVID at your business could have on your company. A COVID waiver would protect you from customers or vendors suing you for contracting COVID while they interacted with your business.

As a quick note, notice, we do not mention employees. You generally cannot contractually waive an employees right to sue you for COVID exposure. Employment law will, in most instances, pre-empt such a waiver.

How can you maximize your chances of an enforceable COVID-19 waiver?

  1. Understand your states’ laws on waivers
    States vary on how businesses can draft a valid COVID waiver. Therefore, be aware of the requirements for a valid waiver in your state.
  2. Clearly identify the waived claims
    To have a valid waiver, you should explicitly express the claims that a party is waiving. Therefore a valid COVID waiver should include explicit language on waiving any negligence on behalf of your business relating to COVID. Keep in mind, you customarily cannot waive gross negligence, a higher standard than ordinary negligence.
  3. Be as conspicuous as possible
    This is one of the most important factors in having an enforceable waiver. The more conspicuous a waiver, the more of a chance a party agreeing to a contract will notice the COVID waiver. To make the waiver as conspicuous as possible, try setting it apart from the rest of the contract, bolding the lettering of the waiver, putting the waiver in capital letters, requiring a special separate acknowledgment and signature for the waiver, or drafting the waiver with such a distinct textual effect that the reader cannot miss it. If you include some of the aforementioned tips above, no one can claim that they did not see the waiver.

What drawbacks should I be aware of if I plan to include a contractual provision for a COVID waiver?

While you have solved a major legal issue relating to COVID by drafting a COVID-19 waiver, you may take on a business risk. If you use a COVID waiver, you could potentially damage relationships with vendors or push away customers. Do they begin to lose your trust if you have them sign such a waiver? Something to keep in mind if you begin to consider such.

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COVID waivers are starting to become more and more common for businesses in America, amidst the pandemic. If you want to join those businesses in having COVID waivers, let JUSTLAW help you in effectively drafting such a waiver.

In addition, check out a sample waiver that JUSTLAW attorneys could potentially use for your business:

COVID-19 WAIVER (READ CAREFULLY, AS IT AFFECTS YOUR LEGAL RIGHTS)

I acknowledge the contagious and dangerous nature of the Coronavirus/COVID-19 and that the CDC and many other public health authorities still recommend social distancing. I further acknowledge that ________ has put preventative procedures in place to curtail the spread of the Coronavirus/COVID-19. I further acknowledge that ______ can not guarantee that I will not become infected with the Coronavirus/Covid-19. I understand that the risk of becoming exposed to and/or infected by the Coronavirus/COVID-19 may result from the actions, omissions, or negligence of myself and
others, including, but not limited to, employees, other customers, and their families. I voluntarily seek the products and/or services provided by _____ and acknowledge that I am increasing my risk to exposure to the Coronavirus/COVID-19.

I authenticate that:

      • – I am not experiencing any symptoms of illness, not limited to the following, such as

 

      • cough, shortness of breath or difficulty breathing, fever, chills, repeated shaking with

 

    • chills, muscle pain, headache, sore throat, or new loss of taste or smell.
    • – I have not traveled internationally within the last 14 days.
    • – I have not traveled to a highly impacted area within the United States of America in the last 14 days.
    • – I do not believe I have been exposed to someone with a suspected and/or confirmed case of the Coronavirus/COVID-19.
    • – I have not been diagnosed with Coronavirus/Covid-19 and not yet cleared as noncontagious by state or local public health authorities.
    • – I am following all CDC recommended guidelines as much as possible and limiting my exposure to the Coronavirus/COVID-19.

I hereby release and agree to hold _____ harmless from, and waive on behalf of myself, my heirs, and any personal representatives any and all causes of action, claims, demands, damages, costs, expenses and compensation for damage or loss to myself and/or property that may be caused by any act, or failure to act of the salon, or that may otherwise arise in any way in connection with any services received from _____. I understand that this release discharges _______ from any liability or claim that I, my heirs, or any personal representatives may have against the salon with respect to any bodily injury, illness, death, medical treatment, or property damage that may arise from, or in connection to, any services received from __________. This liability waiver and release extends to the salon together with all owners, partners, and employees.