Add paperwork to the list of things that the coronavirus pandemic has added or changed in your life.
Some vacation spots, salons and a range of other service providers are asking consumers to waive any legal claim they might have if they’re sickened with Covid-19 while at the business.
Walt Disney World warns visitors that they “voluntarily assume all risks related to exposure of Covid-19” in a disclaimer on their website, and requires visitors reserving tickets to acknowledge its Covid-19 liability waiver and assumption of risk. President Donald Trump’s campaign had people sign a coronavirus liability waiver before attending a June rally in Tulsa, Oklahoma.
Why we’re seeing waivers for a disease
First, know that liability waivers for general injury are nothing new. Think of waivers you might have signed before playing sports or going indoor rock climbing, saying you won’t sue if you get hurt.
Waivers for a communicable disease are more novel.
“I think the reason you have it now is … you have this pandemic, and we don’t have a vaccine and we obviously don’t have any cure-all treatment,” Richard C. Bell, a liability trial attorney in New York City, told CNN.
“As businesses are opening up, they’re very concerned (that) people are going to contract coronavirus because of something (the business) did, or didn’t do.”
How much will these waivers really protect businesses?
Before this coronavirus, injury waivers could protect businesses somewhat, if they met certain criteria. With Covid-19, “we’re in such uncharted waters … it may be something unique for the court to interpret,” Bell said.
Still, we can start by checking how courts have treated waivers before Covid-19:
Ordinary negligence, or gross negligence?
Liability waivers basically say that if a businesses does something negligent, and the person signing gets hurt, that person can’t succeed in a liability suit.
Laws vary by state. But while a court might let a waiver protect a business for ordinary negligence, it generally won’t for gross negligence or willful misconduct — no matter what the waiver says, Bell said.
Bell says this is how ordinary negligence might look for Covid-19: A business disinfects its public spaces, but not as often as a government recommended. Or maybe it didn’t enforce customers’ social distancing as often as might be reasonable.
Maybe, if other factors are met, a coronavirus waiver would protect that business from a lawsuit, Bell said.
But gross negligence might be a gym boss knowing an employee was sick, but letting him work with clients anyway. A waiver may not protect that gym, regardless of what’s on paper, Bell said.
Some states also may consider whether a waiver is generally against public policy — that is, against the state’s interest in the health and safety of its citizens, Bell said.
Is the language clear?
Courts also will weigh how easily understood the waiver is.
“The question is one of fairness: Are they clear and understandable,” or “are they 48 pages of single-spaced legalese?” said Elie Honig, a CNN legal analyst and former federal and state prosecutor.
How free was the consumer to reject the service?
Courts generally will consider how realistically free a consumer was to turn down a service if they didn’t want to sign a waiver, Honig said. A court might invalidate a waiver for a customer who didn’t have much choice.
Compare two theoretical businesses asking consumers to sign waivers: a remote grocery store, or a gym.
The consumer may feel free to reject the gym’s waiver, and therefore its services, and perhaps go elsewhere for a gym. That choice may be harder in the grocery scenario, and a court may frown on that, Honig said.
For a time, colleges reportedly considered asking athletes to sign coronavirus waivers as a condition of playing, while stipulating that athletes would not lose scholarships if they chose not to. One asked its athletes to waive any coronavirus liability claim against the school before returning for voluntary summer workouts — though it backed off.
The NCAA eventually prohibited colleges from making athletes sign coronavirus waivers. Bell said even if dissenting athletes had kept their scholarships, waivers might have been suspect, because team participation would have been a heavy bargaining chip.
What if Congress passes a Covid-19 liability law?
Recently, Republicans in the US Senate have proposed sweeping, temporary protection against coronavirus liability lawsuits for businesses, schools, health care providers and nonprofits.
The “Safe to Work Act” would generally protect those businesses making reasonable efforts to meet public health guidelines, and would cover December 2019 to 2024.
The proposal explicitly would not provide liability protections for those who engage in willful misconduct or gross negligence.
So far, it’s not clear whether the proposal would advance through Congress.
If it ever did pass, it might seem to negate the need for businesses to get consumers to sign waivers in the short term. But, “any business is probably still going to ask for waivers,” Honig said.
“It’s belt and suspenders” for the business, Honig said. “What if the (federal) law gets struck down?”
“I would say (as a business), good, that (federal law) looks like it protects me from negligence. But why not get a waiver, too? There’s next to no downside.”
Is there a difference between ‘I assume all risks’ and ‘I waive my right to sue’?
The examples listed above say varying things. Some only include language about the consumer assuming all risk; some specifically say they waive their right to sue.
Essentially, both are saying the same thing, Bell and Honig said.
But, again, gross negligence generally would nullify the waiver, regardless of how it is written, Bell says.
An invalid waiver doesn’t necessarily mean a winning lawsuit
Just as a waiver doesn’t automatically mean a business is going to win in court, gross negligence doesn’t necessarily mean a plaintiff is going to win a lawsuit for getting Covid-19, Bell said.
“You have to prove causation — meaning that the establishment caused me to contract Covid,” Bell said.
“That’s a very steep mountain to climb, because you have to prove that you got it from there.”
Coronavirus lawsuits might be more likely to succeed in cases involving confined environments like nursing homes or cruise ships, where someone might argue they couldn’t go anywhere else, and therefore caught the disease nowhere else, Bell said.
What to consider before you sign
Here’s what consumers should consider before signing a coronavirus waiver, according to Bell:
• Read it carefully. “It should be in the kind of lay language you understand.”
• Inspect the business, see if they’re enforcing public health guidelines, and don’t sign if they’re not.
“If they’re not meeting the new normal you have to say to yourself, ‘Am I really comfortable with this? If you’re not … walk out and go somewhere else.”