As vaccines roll out and states roll back restrictions, businesses wrestle with keeping their employees, contractors, and clients safe and complying with ever-changing rules and guidelines. Many companies are relying on waiver, indemnity, and “assumption of risk” forms. But are they worth the paper they are written on?
Like many aspects of dealing with Covid, the short answer is, “we’re not 100% sure.” Fortunately, we can look to how states address negligence claims as a good indication of how they would likely treat Covid waivers. This is an area where the rules and answers will change depending on your state, so remember that this article isn’t legal advice, and you should always obtain legal advice relevant to your particular situation and not rely on what you find online. Your local Fairfax employment attorney can help you navigate through these questions.
All right. So, why are we talking about negligence?
Because if someone is going to claim, they caught Covid (or were otherwise injured) because of something you did or didn’t do, “negligence” is the most common claim they will bring. To learn more about what negligence is, please check out our previous post here. The issues related to whether waivers or assumption of the risk acknowledgments can protect your business from a later claim relate to all forms of negligence claims and not just those related to Covid-19 and its variants.
The Quick Skinny on Negligence Claims
To even start the discussion, you need to understand that we are going to have to assume someone could state a negligence claim for contracting Covid. To prove negligence, a plaintiff has to show 3 things: (1) a duty owed to them by the defendant: (2) the defendants’ actions or inactions violated that duty; and (3) the defendant’s conduct caused a legally recognizable injury to the plaintiff.
When you’re talking about an employer/employee relationship, the employer has a duty to provide the employee with a safe and healthy work environment. However, an employee’s claims for injury while working will generally fall under worker’s compensation and not separate negligence claims. The issue of worker’s compensation and Covid infection is an open and evolving one.
Who sets the duty and what it is in terms of Covid infections is unclear. Generally, what duty exists and what conduct falls below this level is determined on a state-by-state basis. So, in a state that has lifted all Covid restrictions, there may be no duty. In a state that still requires temperature and monitoring requirements, there may be. To add to the complications, since the Centers for Disease Control (“CDC”) has issued “best practices” guidelines, those guidelines may become a national standard.
We’re going to presume that an employee can sue for Covid exposure. Whether you have a duty to clients or attendees at an event varies depending on the relationships. Even assuming you do, that duty is to act as a reasonable person. We’re also going to assume that there was a breach of these amorphous duties and that the Plaintiffs can contact trace their Covid infections to your workplace, shop, or event.
Take some solace in the fact that I had to do a whole lot of assuming to get to the point where even talking about waivers or assumption of the risk agreements made sense. Anyone trying to assert a negligence claim for contracting Covid is likely to have a hard time doing so.
What’s a waiver?
You can agree that you won’t take certain actions. You are “waving” your right to do or not do something. Often a waiver happens after you have the right. But in certain cases, you may be able to waive that right before it ever matures. For example, you may fall three months behind in your rent. Your landlord and you then agree that the landlord will accept two months’ payments and “waive” or forgive the third month.
Negligence waivers are different. They are often signed before you are harmed. Have you ever gone, or taken your child, to a laser tag place? Before you are allowed to check out the equipment to play, the business has you signing a waiver that you won’t sue them if you get hurt.
A waiver may read something like this:
By signing below, I hereby release and agree to hold Company X 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 damages 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 Company X. I agree to release Company X from any and all liability for the unintentional exposure or harm due to the Coronavirus (COVID-19)
Essentially, you are giving up your right to sue or collect damages if you contract Covid.
What’s assumption of the risk?
Some activities are inherently dangerous. Bungee jumping springs to mind (pun intended, I crack myself up). By agreeing to jump off something with an elastic band tied around your ankles, you are knowingly risking back injury, and a host of other pains and minor injuries. You “assume” these risks since they are the reasonably foreseeable results of bungee jumping. An assumption of the risk clause may read something like this:
I acknowledge that Company X has put in place preventative measures to reduce the spread of the COVID-19 virus, to the best of their abilities. I further acknowledge that no guarantee exists regarding whether or not I may contract COVID-19. I understand that the risk of becoming exposed to and/or infected by the COVID-19 virus may result from the actions, omissions, or negligence of myself and others, including, but not limited to, staff and other clients. I acknowledge that I increase my risk of exposure to COVID-19 by participating in services rendered. I acknowledge that I must comply with all set procedures to reduce the spread while in attendance.
A tip off to these clauses is the use of the phrase “I acknowledge…”
Let’s go back to bungee jumping and the “assumption of the risk” agreement. Signing the agreement didn’t, however, have you assume the risk that the person weighing you and measuring out the bungee cord will get it wrong, so you stop too short and get whiplash because you are moving too fast on the recall. When that happens, the person is negligent. This is why you’ll often see assumption of the risk clauses in waiver agreements,
Are they worth the paper they are written on?
It depends on your state.
There is a good argument that a person should not be able to waive negligence claims before they occur. After all, if the company performing the service knows that it can’t be held responsible for any injury its causes, why should it be careful? Society as a whole faces a greater risk when advanced waivers of liability are possible. This society-based argument is what lawyers call a “public policy” argument. When a state follows this public policy, these waivers are not enforceable and only serve to discourage people from bringing valid claims.
Other states hold the individual’s right to freely contract is more important than the generalized social right. Those states will enforce a proper and valid waiver and assumption of the risk agreement even when signed before the damage happens.
What makes a valid waiver and assumption of the risk agreement?
Three states—Louisiana, Montana and Virginia—disallow pre-occurrence negligence liability waivers entirely. Where the pre-occurrence waiver of negligence claims is generally allowed, there are still certain standards for these agreements before a specific agreement is enforced. Waiver requirements and laws vary by state so an enforceable waiver in the District of Columbia may not be enforceable in Texas or California.
According to employment attorneys, three questions that can determine a waiver’s enforceability include:
Does the waiver use clear and unambiguous language?
If not, then it’s not worth the paper it’s written on. A waiver is a knowing relinquishment of a known right. When you are talking about a right that hasn’t occurred yet, it’s important to state what the claim might be. It’s why doctors tell you all the things that could go terribly wrong before your surgery. Informed consent is key to enforceability of a waiver. If the contract isn’t clear, it’s not enforceable.
The waiver needs to be reviewed and signed before the person is at risk for the injury. So, if you are using them for an event, the attendee must have the chance to review and sign before entering the building. Use clear and unambiguous language in your waiver. Specifically, mention the risks. For Covid-19, you would include these risks and other basic information, like:
The highly contagious nature of the virus
Possible ways a person can get infected
Risks a person takes on after entering the business.
It must be easy for your customers or employees to understand that they’re agreeing to waive their legal rights to sue for negligence. This is often done by putting the waiver language in larger, bolded, or capitalized font. Some states may require larger fonts and bold type for waivers. If you have any questions on how to produce an effective waiver form, contact a Fairfax employment attorney today.
Was the waiver signed voluntarily?
In this context, voluntary doesn’t just mean they willingly wrote their name. It means they had an actual reasonable choice not to sign and the parties had equal bargaining power. Let’s put this in the gym context for a moment. You don’t have to go to the gym. Yes, it’s a good choice but it’s not something that is required for you to meet the basics of survival. Yes, the gym in question may even be Da’ Bomb!, but you could go to another gym. So, when you sign Da’ Bomb!’s waiver form, you’re doing so voluntarily. You had other viable options. The same analysis will likely hold true for concerts, seminars, sporting events and other large crowd gatherings.
There may be a different result when an employer asks an employee to sign as a condition of employment. Now the parties are in two very different negotiating positions and the employee is in a “take it or leave it” pose. “Take it or leave it” or “adhesion” contracts can be valid. Most loans, insurance, and car sales contracts are adhesion agreements. They cross the line and aren’t worth the paper they are written on when they: (1) go beyond the terms that the weaker party would have reasonably expected, and (2) the contract is exceptionally unfair (“unconscionable”) to the weaker party. The first factor goes to what the customer might have expected, and the second to the motives of the stronger party. In the employment context, the company has a duty to provide a safe and healthy working environment for its employees. A Covid or other health-and-safety-based waiver would relieve the employer of this obligation. Time will tell if the employer is unfairly released, but there is a significant risk that the waivers won’t be upheld in the employee/ employer context.
Did the person signing have adequate time to review the waiver?
Remember that since you must know that you are giving up certain rights by signing a waiver, you need adequate time to review the agreement.
Enforceability of COVID-19 Waivers Vary by State
Some states don’t permit waivers for personal injury claims whether based on Covid or other negligence. Others have specific wording or other requirements for a waiver to be enforceable. Some states may not enforce posted waivers, but require the person to sign a specific agreement to waive these rights. Because waiver requirements and enforceability varies on a state-by-state basis, you must understand your local laws. A form of the internet just won’t work here.
Use Legal Counsel for COVID-19 Waivers
If you are considering using Covid waivers, consult with an attorney. The attorney can give you advice on what to include in the waiver and whether it’s likely to be enforceable in your state. Some states have enacted legislation to protect certain classes of people or businesses from Covid claims. In some cases, your business will qualify for protection against claims for negligent Covid transmission.
Finally, even if a Covid waiver or assumption of the risk agreement isn’t enforceable in your state, consider taking steps to educate your customers and employees about risks and steps they can take to stay safe, like marking off the places to stand so customers are six feet apart from the others in line. Not only does taking these steps show your employees and customers you care about their health, they also help establish that you met your duty of care and possibly defeat a later negligence claim.
If you’re contemplating Covid waivers and aren’t sure whether they are worth the paper they are written on, or would like assistance with any other business matter, please follow the link below to request an appointment.