As businesses continue to reopen throughout the United States, more gyms, salons, schools and other employers are asking people who enter their buildings and work within their spaces to sign COVID-19 liability waivers.
Considering the coronavirus is known to spread from people being in close contact with one another, these liability waivers can come with their own conditions, but they typically ask consumers to recognize this risk and release the business of responsibility if a person contracts COVID-19. In the latest stimulus package proposed by Senate Republicans, businesses would get a liability shield that would make it harder for people to take a company to court over coronavirus exposure.
Many businesses have been implementing these waivers during the pandemic, and President Trump’s reelection campaign is no stranger to them, either. At a June rally, organizers asked attendees to waive their right to sue and acknowledge that, “By attending the Rally, you and any guests voluntarily assume all risks related to exposure to COVID-19.“
Legal experts weigh in on what you could be signing away and what consumers need to know.
If you can, avoid signing the liability waiver.
If you are choosing between patronizing a business that makes you sign a COVID-19 liability waiver and one that doesn’t, consumer attorneys suggest you pick the business that doesn’t.
“You are giving up your right to hold a bad actor accountable in court if you sign away your rights.”
– Remington A. Gregg, a lawyer at Public Citizen, a consumer advocacy group
“Go to the nail salon that says, ‘We’re not going to require you to sign a waiver.’ One would hope the reason they’re doing that is they are engaging in healthy behavior,” said Craig Peters, vice president of the trade association Consumer Attorneys of California. “If you are going to a nail salon that requires you to sign a waiver, I would ask them first, specifically, ‘What are you doing that is in compliance with the health rules to help prevent me from getting COVID?’”
That way, you can make an informed decision of where you will bring your business. If you don’t sign the waiver, you may not be able to visit your favorite gym or hair salon, but in return you get to keep one of your rights.
Remington A. Gregg, a lawyer at Public Citizen, a consumer advocacy group based in Washington, D.C, said he would not sign one. “You are giving up your right to hold a bad actor accountable in court if you sign away your rights,” Gregg said. “Corporate power is big in this country already. And they hold a lot of power against us. … Do we want yet another way for businesses to take away our right to hold people accountable?”
“You are the one that has to pay the hospital bills, you are the one that has to deal with the loved one who is gone. All this does is pass the risk to you,” Gregg said.
Peters also noted that even if you do sign the waiver and contract the virus, you could still potentially have a case for accusing the business of gross negligence, which would be considered an “extreme departure from what a reasonably careful person would do,” he said. But because COVID-19 is still so new, it is hard to know what the courts will say on what would constitute gross negligence, Peters said.
Just because you got COVID-19 doesn’t mean you can easily prove that the business you went to is at fault. Of the 4,600 COVID-19 complaints law firm Hunton Andrews Kurth has been tracking since March, only 6% are classified as consumer-related, and only 11% as employment-related. Most complaints are about insurance.
Gregg noted that causality would be huge barrier, as it’d be difficult to prove that you contracted COVID-19 at the barbershop, for example, and not at any of the other businesses you frequented that day.
If your own job is asking you to sign a waiver, it can say a lot about about the business’s approach to safety measures.
First of all, Peters noted that signing a liability waiver should not prevent you from accessing workers’ compensation insurance if you get injured at work.
And if your employer does ask you to sign a waiver, you should get that understanding in writing to cover all your bases. That language could look like, “Just to be clear, you asked me to sign this waiver to not hold you liable under the negligence laws if I was to contract COVID. My understanding, because I asked you point-blank, ‘Do we have workers’ comp insurance?’ is that we do.“
Some employees have been fired for refusing to sign these waivers, but employment lawyers say courts would likely not recognize these agreements because of the extremely unequal bargaining power between employers and employees.
Keep in mind that by asking you to sign this liability waiver, a business is also showing you exactly where their priorities are with workers’ safety.
“Asking employees to sign a waiver does not exactly instill confidence that an employer is taking appropriate safety measures. Would you feel comfortable going anywhere that asked you to sign such a thing?” said Donna Ballman, a Florida-based employment attorney. “Employees with any ability to move elsewhere will start sending out resumes. Morale will be terrible for those who stay. Companies that do this will end up with the workforce they deserve.”