Best Practices for Drafting Coronavirus Liability Waivers
With state and local restrictions lifting, many business owners are making the decision to reopen their doors to remain financially stable, even as they evaluate the risks of providing services for clients during a pandemic. As of October 1, 2020, the coronavirus has taken over 203,000 lives in the U.S. and infected 7.3 million people, according to Johns Hopkins University. Knowing the dangers of the coronavirus, owners must do everything they can to protect their businesses, which may include asking customers to sign a COVID-19 liability waiver prior to services being rendered. While it remains uncertain just how effective these waivers may be in court, they provide an extra layer of legal protection, and can encourage business owners to consider all possible outcomes of reopening. Businesses must still comply with all local, state, and federal safety guidelines related to the coronavirus, or else they may still be found liable for damages caused.
When considering whether a coronavirus liability waiver will be useful to your business, take into consideration that each state is different when it comes to the validity of liability waivers. States including Louisiana, Montana, and Virginia do not allow liability waivers in these situations. California rarely enforces liability waivers, while New York only enforces liability waivers that have incredibly clear provisions. Under Florida law, liability waivers are considered exculpatory agreements; and, if written in a clear and understandable manner, they can be enforced by the Florida court system. At the federal level, legislators are discussing a type of “safe harbor” for specific businesses and nonprofit organizations. Until such legislation is passed, however, liability waivers are the best available option for businesses reopening.
Liability Waiver Specifics
Some businesses that may be best served by drafting a COVID-19 waiver include doctor’s offices, gyms, restaurants, day care centers, movie theaters, salons and barbershops, tattoo shops, and any business that requires close, unavoidable contact with customers. When drafting a coronavirus liability waiver, it is important to know that it cannot provide blanket immunity to businesses from lawsuits. A waiver can limit or prevent certain liability exposure and will highlight safety risks to customers, but it will not necessarily apply to intentional or gross negligence claims.
The specific language in the waiver will determine what protections are available to the business. To be effective and enforceable, a liability waiver should be narrowly tailored to the business it is trying to protect. It must be clear, unambiguous, and easy for the customer signing it to understand. It is critical that customers are fully able to read and acknowledge the terms listed in the waiver and that all customers sign the wavier before receiving services. The customer needs to know they will not receive services from the business if they choose not to sign the waiver. Nothing in the waiver should be implied. The terms must be clearly written so the customer knows exactly what they are agreeing to.
While businesses know why they are creating the waiver, the reason for the waiver (coronavirus) must be clearly stated throughout the document. Because a business cannot guarantee a customer receiving services at its establishment will not be exposed to the coronavirus, their liability waiver should include the health and safety risks associated with COVID-19. If the business provides services to minors, under Florida Statute 744.301(3), it must also include the option for a legal guardian or parent to sign the waiver acknowledging the risks on behalf of the minor.
Many businesses implementing a coronavirus waiver have not previously used or required liability waivers from their customers. There are many free or inexpensive coronavirus liability waiver templates floating around the internet; however, even if a business spends a lot of valuable time and resources filling out and using those templates, they may prove inadequate and not offer the necessary protection the business needs. How successful a liability waiver is depends on its ability to show the customer signing it all of the risks associated with receiving services from the business. Having your coronavirus liability waiver drafted by a lawyer is the best way to ensure specific protections for your business.
After the business has drafted the waiver, it cannot just post it in a store window or at the front counter. Publicly posting a waiver does not make it effective or enforceable. To ensure the document is able to protect the business providing services, the waiver must be provided to and signed by the customer.
Some businesses are also asking employees to sign coronavirus liability waivers; however, this practice is not generally recommended. Employers are not allowed to make employees sign a contract that would not be enforceable. Florida law prohibits waivers of work-related injuries, which coronavirus may be considered. The Occupational Safety and Health Administration (OSHA) identified COVID-19 as a reportable injury in the workplace. Additionally, there has already been an increase in coronavirus lawsuits based on unsafe work environments.
Liability waivers are complicated and can be controversial legal constructs. When enforced by the courts, they can prevent a negligence lawsuit; however, if they are disregarded or dismissed, they allow risk to be passed to the business. The coronavirus pandemic will test the validity of liability waivers as more of the population brings claims against businesses in which they believe the contracted the virus.