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Details to consider when deciding whether you want to ask your customers to sign a waiver of liability.

As people begin venturing outside their homes in a post-COVID-19 world, they may notice that some businesses are asking that they declare that they do not currently have COVID-19. Whether it is the gym, salon, dentist, doctor’s office, or school, some businesses may request that customers sign a COVID-19 general waiver of liability, which states that the customer will not hold the business legally responsible if they later test positive for the disease.

A general waiver of liability is a contractual agreement, signed by a business and a customer, informing of the risks being taken and waiving the right to sue if injuries are incurred. Waivers of liability are being used with the intent to protect the interests and assets of the business so that they cannot be held liable for injuries, including death. Indirectly, the very act of signing a waiver raises the awareness to the risk and seriousness of the matter.

Individuals who have contracted COVID-19 could be asymptomatic – they do not show signs of illness. These individuals may not even know they are positive for COVID-19. The Centers for Disease Control and Prevention (CDC) has encouraged the use of face coverings and other measures to prevent the spread of the disease. A business owner may have the legal right or legal standing to enforce a face covering requirement. As a business owner, it is recommended that you consult an attorney regarding the disease prevention requirements, such as face coverings, that your business selects to put in place.

As a business during this time of COVID-19, consider the following Q&A:

  1. Are waivers the only thing I need? A waiver does not replace the need to follow safety and social distancing guidelines from the CDC, the use of face coverings, risk management protections, and mitigation practices.
  2. Is a waiver something that I can write myself? Not recommended. Since regulations and guidelines vary, the drafting of any contract including waivers, should be done with the advice of legal counsel.
  3. What level of protection does a waiver provide? The waiver typically is used to alert the person signing the document to the risks involved in their participation, and to remove legal liability from the business responsible for the activity or ordinary negligence.
  4. Does my state accept waivers as binding contracts? States vary on how they view these waivers. Some states may not treat them as enforceable contracts. Consult an attorney familiar with your state’s case law, statutes and regulations.

At the time this article was written, there is no court precedent regarding the use of waiver of liability forms for COVID-19; however, things may shift over time. Hence, it is important to approach with caution, engage counsel and take steps to mitigate customer exposures by following CDC guidelines.

Remember: A waiver does not replace the need for additional risk management protections and mitigation practices.

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