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Are Waivers Worth It?

An update on enforceability in a COVID-19 world

December 13, 2021 Photo

Unless you have been living under a rock or have been in hibernation for the last year and a half, you have heard about the pandemic and know of a little thing called COVID-19. But maybe you do not necessarily know about how it operates or spreads, all of its variants, why it affects people differently, and how to avoid exposure. Unfortunately, neither do the authors of this article. And it does not look like any experts speaking on the topic are ever in agreement.

Speaking of exposure, what about legal exposure? Are claims alleging exposure seeing the light of day? Are waivers against COVID-19 necessary? Are they effective?  Should you revamp existing waivers to include COVID-19, or should you go back and hide under a rock? These are all good questions. The answers, however, are much like many other legal questions—it depends.

Clearly, waivers in pre-incident release of liability provisions are becoming more mainstream. Pre-COVID-19, such waivers were most frequently seen in the context of amusement parks and extreme sports. In the COVID era, one must sign a waiver to participate in or attend more routine tasks, such as a conference, a movie, or a hair salon. Additionally, in some cities in California, you cannot dine indoors until you show your vaccination card. California also recently became the first state to require proof of vaccination or a negative coronavirus test to attend indoor gatherings of 1,000 or more people. However, just because a waiver is comprehensive, or because it is signed, does not necessarily mean that it will be enforced by the courts or provide the intended degree of protection.

If a restaurant or a venue fails to enforce the vaccine rules, does that open them up to potential premises liability or general liability? The answer is, maybe. Does that mean that you should advise clients to post warnings or require waivers from diners or attendees at weddings, music venues, theaters, visitors to workplaces, or colleges where there may be gatherings of 1,000 or more people? Again, it depends.

What Do the Courts Say?

Generally, courts will look to several factors when weighing enforceability of a pre-incident waiver. For one, the waiver must have been executed voluntarily. Courts will also look to the clarity of the language and whether the key provisions were sufficiently prominent and not buried on the back of a form in fine print. While enforceability of waivers will vary greatly by jurisdiction, many states will enforce a waiver that bars claims sounding in ordinary negligence, but will hold that same waiver unenforceable where it seeks to bar a claim for gross negligence or willful conduct. Public policy considerations are a central theme. Most jurisdictions will decline to enforce a waiver seeking to bar a claim for gross negligence—or deliberate or even criminal conduct—as being against public policy.

Some of the first COVID-19 waivers businesses sought to have their customers execute were in violation of then-in-place COVID-19 restrictions. For example, some businesses have attempted to have employees or customers sign waivers in contravention of requirements regarding masks or social distancing. While there has been some litigation by merchants seeking to challenge the enforceability of mask or occupancy mandates, and even more recently to challenge vaccine mandates, it may be some time before we see published cases regarding enforceability of COVID-19-related waivers.

We can expect that, based upon general principles of public policy and workplace safety, waivers requiring an employee to forego protections afforded by the Workers’ Compensation statute or OSHA regulations are unlikely to be upheld. For example, a routine, non-frontline employee with a COVID-19 exposure in California may be presumed to have an “industrial” work related injury, whereas, in Florida, no such injuries would be recognized under workers’ comp. 

The flip side of the COVID-19 waiver is the polarizing vaccine-mandate debate. Vaccine requirements are becoming more universally mandated, and specific OSHA regulations may ultimately be promulgated. Some early challenges to employer vaccine mandates in the health care industry have failed. At least some of the vaccines are now fully FDA approved, undercutting an argument that attempts to distinguish the COVID-19 vaccines from those routinely required in academic and other settings—vaccines for measles and polio, for example.

A full discussion on vaccine mandates is beyond the scope of this article, and perhaps premature. However, the guidance to date is that private companies and government agencies can require their employees to get vaccinated as a condition of employment. While individuals retain the right to refuse, they may not have any ironclad protections under the law. Thus far, it appears that the law is on the side of employers, and vaccination can be considered a “condition of employment,” much like any other job qualification. Of course, there are exceptions for those with disabilities or sincerely held religious beliefs who may be entitled to a reasonable accommodation under civil rights laws, provided that an accommodation does not constitute an undue hardship for the employer. 

Historically, the more routine the activity, and the less attention drawn to the waiver, the more likely a plaintiff will be able to mount a successful challenge to the waiver. As COVID-19 waivers become akin to universal, there will certainly be those who will argue that the routine and ever-present nature of such provisions render them inconspicuous or otherwise unenforceable. However, unlike in the context of extreme sports or other high-risk activities engaged in for recreation, there may be an equally compelling—if not stronger—public policy argument in favor of enforcement of waivers.

Without such waivers, personal-service businesses such as hair salons, dentists, fitness facilities, and other higher-risk and close-contact businesses might not be able to remain open.

For the very reason COVID-19 and other viral diseases were initially not seen as compensable employment-related illnesses, we may not see many COVID-19-related third-party liability claims or lawsuits alleging negligent or other exposure. As the virus is so ubiquitous, how will a claimant establish that he contracted it at the defendant’s premises, much less that same was due to the defendant’s negligence? Similarly, if one is signing a waiver not for attendance at a commonplace activity, but for a high-risk activity such as whitewater rafting, how will such a plaintiff convince a jury that he appreciated the risks of an arguably dangerous sport but failed to appreciate the risk of contracting a no longer novel but now very common virus? At a certain point, where there are regulated mandates and/or practices to help mitigate the risk of contracting a virus that one could encounter virtually anywhere, waivers may become a step above belt and suspenders.

Some insurers have begun to provide their customers with templates and suggestions regarding how to create an effective COVID-19 liability waiver. Consulting with local counsel in your jurisdiction before creating such a waiver or implementing a COVID-19 risk mitigation program is advisable. Based upon established waiver law, it is unlikely that any waiver or risk mitigation program that is in contravention to applicable standards or regulations would be enforced.

Simply put, a waiver will not save you if you are subjecting your customers or others to unnecessary or excessive risk. As with any other risk, an ounce of prevention can be worth more than a signed waiver. To that end, the best advice may simply be to comply with all local laws and regulations and take advice from the experts to make the business or workplace environment as safe as possible. With any luck, avoiding exposures in the first place may be the best way to avoid testing the efficacy of your waiver language. 

About The Authors
Multiple Contributors
Jeanine D. Clark

Jeanine D. Clark, Esq., is partner at Margolis Edelstein. jclark@margolisedelstein.com

Simon Keshishian

Simon Keshishian is senior director of risk management and senior risk counsel for Red Bull North America, Inc.  simon.keshishian@redbull.com

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