Companies Want to Block COVID-19 Exposure Claims with Contract Language
In an acknowledgement that businesses in all sorts of industries may be exposing people to the Coronavirus in a breach of their duties of care to both customers and employees, a new attempt to avoid financial responsibility for the victim’s harm is developing across the country. Instead of seeking governmental immunity at either the state or federal level, the new approach is through state contract law.
Customers, clients, employees, and workers are being asked to sign written documents that state they will not hold the business liable should they (or their immediate families) become ill with COVID-19. Legally, these are contractual documents known as “liability waivers” or “releases.”
For more, read “COVID-19 Liability Waivers Now Part of Going to Hair Salons, Gyms, Theme Parks and More,” written by Kate Gibson and published by CBS News on June 12, 2020.
What is a COVID-19 Liability Waiver?
A COVID-19 Liability Waiver is a written document that is presented as a form to fill in by the customer (student, client, patron, etc.) or employee. It is a legal document designed to be contractually binding on the person who signs it. It is governed by state law.
The liability waiver asks that the customer or employee acknowledge the risks of exposure to COVID-19 involved in either doing business with the company (shopping, eating, studying, etc.) or working there. It also asks that the person signing the waiver agree that he or she will not bring any type of claim against the company or business based upon any Coronavirus-related illness and that he or she agrees to assume all risks related to the COVID-19 virus. The waiver usually includes language that the person agrees they are signing the document voluntarily and without duress or coercion.
Why use these forms? The purpose of the COVID-19 Liability Waiver is to shield the company or business from legal responsibility and financial liability for anyone who falls ill with the Coronavirus, whether a customer or employee.
Coronavirus Liability Waivers Being Demanded All Over the Country
As the country “re-opens” after widespread Stay-at-Home Quarantine Orders, these COVID-19 releases from liability are being sought by all sorts of establishments. Both workers and third-parties (customers, etc.) are being asked to sign them. Consider the following examples:
1. Student-Athletes Choice: Sign Waiver or Be Barred From Workouts
For instance, Southern Methodist University in Dallas, Texas, is asking its returning student body to sign a COVID-19 Liability Waiver. See, “University Requiring All Student-Athletes to Sign Coronavirus Liability Waiver before Return to Campus,” written by Tommy Beer and published by Forbes on June 15, 2020.
A complete copy of the entire text of the SMU COVID-19 Release (entitled “ACKNOWLEDGEMENT OF RISK FOR COVID-19 SUMMER 2020”) has been shared by the Dallas Morning News in an article written by Sam Blum and published on June 15, 2020.
Of particular importance is its language that states any SMU student-athlete who refuses to sign the COVID-19 Liability Waiver will not be allowed to participate in workouts.
Indiana Hoosiers Asked To Sign COVID-19 Liability Waiver
This hits close to home. Sports Illustrated reports that similar Student-Athlete COVID-19 Liability Waivers are being presented by other universities across the country, including Indiana University. Read, “Coronavirus Liability Waivers Raise Questions as College Athletes Return to Campus,” written by Ross Delenger and published on June 17, 2020.
2. Traders on the New York Stock Exchange Must Sign COVID-19 Waiver to Work on the Floor
Before any securities trader can walk onto the trading floor of the New York Stock Exchange (NYSE) and begin work, he or she must sign a Coronavirus Liability Waiver that reportedly states they acknowledge they run the risk of “… contracting COVID-19, respiratory failure, death, and transmitting COVID-19 to family or household members and others who may also suffer these effects…” and will hold NYSE harmless for any resulting bodily injury damages. Read, “New York’s Stock Exchange Reopens — With Masks and a Waiver,” written by David Gura and published by NBC News on May 26, 2020.
3. Local Businesses in Indiana and Illinois Asking for COVID-19 Liability Waiver
Across Illinois and Indiana, more and more businesses are creating forms for their customers (patrons, clients, etc.) that are a pre-requisite for that person to do business with them. Similarly, employers in our part of the country are asking their workers and employees to sign these COVID-19 Liability Waivers before they can come back to work.
Businesses and companies in all sorts of industries and in a wide range of sizes (mom-and-pop to national franchise) are presenting COVID-19 Liability Waivers both to customers (clients, patrons, etc.) and workers here in Indiana and Illinois.
For details about Indiana Waivers, read: “Mani, Pedi, Liability Waiver: Salons Look Very Different as They Reopen amid Pandemic,” written by Dana Hunsinger Benbow and published by the Indianapolis Star on May 15, 2020.
For more about Illinois Waivers, check out: “Coronavirus Liability Waivers” Businesses Want Customers and Workers to Give Up Their Right to Sue Over COVID-19. Can They Do That?” written by Tom Kirsher and Mark Sherman and published by the Chicago Tribune on June 17, 2020.
Justice for Coronavirus Victims: Can These Waivers Block Businesses from Their Legal Liability?
While businesses may find some comfort in presenting these forms to customers and employees alike, the reality is that the waivers may not survive judicial scrutiny as a legal shield to liability for any breach of the duty of care to keep people safe from the Coronavirus.
Waivers, or releases, are not new to the laws of Indiana and Illinois. For instance, businesses involved in the winter ski industry in our part of the country may ask customers as well as workers to sign releases regarding limited liability before they undertake the inherently dangerous act of downhill skiing.
Traditional liability waivers have been respected in our state courts, but that does not mean these new Coronavirus Liability Waivers will pass judicial scrutiny.
The enforceability of these COVID-19 Liability Waivers is questionable, should a victim decide to sue for injuries sustained after exposure to the Coronavirus.
Many legal challenges can be made to these Waivers, no matter how popular they appear to be right now. First, the Coronavirus Pandemic an unprecedented circumstance, and these waivers cannot be considered as analogous to a winter ski resort’s release from liability. Just because the business presents the form does not mean it is legally valid.
Furthermore, their demands brings legal pause since the signer is often given no choice: they must sign or they will not be allowed to participate in the business’s activities. There’s no negotiation here.
Legally, where one party is not a free bargaining agent and has little if any bargaining power, the contract may be challenged as void. Under state law, it may be held unconscionable and unjustifiably unfair as an “adhesion contract.”
Other arguments can and will be made against these attempts by companies to avoid their responsibilities to keep people safe from harm while they benefit the business either as a customer or a worker.
Victims who have signed a COVID-19 Liability Waiver must understand that no matter how aggressive the form’s language or how intense the denials by the business, they have a right to challenge the enforceability of the Waiver. These forms are not magic shields for companies against being held accountable for their actions (or lack thereof).
For more on Coronavirus Injury Claims, read:
- Coronavirus on the Job: OSHA Failing to Keep Workers Safe from COVID-19 but New Notice May Help Victims Prove Their Legal Claims
- Coronavirus: Nursing Homes in Indiana Reported to Have Almost Half of all COVID-19 Deaths
- Coronavirus Air Travel Lawsuits: Airlines’ Duty to Keep Plane Passengers and Crew Safe from COVID-19
- Coronavirus Insurance Claims for Illness: Coverage for COVID-19 Bodily Injury and Claim Denials
- Coronavirus on the Job: Legal Standards for Employers to Protect Employees from COVID-19.
The Coronavirus is continuing to harm people in Indiana and Illinois and businesses have legal duties to keep people safe while on their premises. If they breach their duties of care, then negligence law may hold them financially responsible for the consequences. Please be careful out there!
