Limitation of Liability – to what Extent can Businesses Cause Customers to Waive any Liability as a Result of COVID-19?
Businesses can have customers sign a Release from Liability Waiver, however, this cannot replace the requirement of maintaining a safe workplace. Businesses need to make sure they are in compliance with government agencies (CDC and OSHA), state, and local guidelines. Demonstrating that the business is following the published guidelines from these authorities is the best evidence an employer can provide to show they are reasonably reacting to COVID-19 risks. A waiver is typically composed of several provisions including:
- Waiver of liability,
- Assumption of risk,
- Covenants not to sue,
- Severability, and
- Choice of law and integration clauses.
In determining the enforceability of these waivers, courts will consider several factors. First, courts will not enforce contracts if they are against public policy, typically due to a disparity of bargaining power, violating a statute, or wanton and willful misconduct. Second, courts will consider whether the waiver language is clear and unambiguous. The customer must understand the risks and potential injuries they are releasing. Ambiguous language carries a presumption against the enforceability of the waiver. Lastly, courts will not consider contracts that were obtained by fraud or duress. Consequently, the enforcement of waivers including COVID-19 risks can be signed, with the caveat that it is hopefully enforceable and avoids the aforementioned factors.
Although waivers can limit the liability to the risks discussed therein, requiring customers to sign the waiver can potentially have several negative implications. Foremost, waivers may not apply to entire industries that have a duty to the public in states like Colorado, California, and Washington. To see if a waiver will be effective, the owner needs to assess the business industry, assess the geographical area, and evaluate how customers or the public will react. Waivers currently exist and are enforceable in potentially dangerous activities such as skiing and skydiving. Additionally, the waivers could scare customers away by causing them to question the integrity and safety of the business.
Alternative strategies to a waiver can be notices or questionnaires. Notices can communicate to consumers the steps the business is conducting to keep the premise, its consumers, and its employees safe without requiring the consumer to sign away rights. Notices require fewer steps from employers and consumers than waivers and questionnaires. Notices, however, are not enforceable and do not absolve the business from liability.
Questionnaires, like notices, can communicate to consumers the steps the business is taking to keep the premise, its consumers, and its employees safe without requiring the consumer to sign away rights. A questionnaire, however, can also ask consumers about their symptoms or exposure, and additional measures they would like to see regarding sanitation, social distancing, or other initiatives the business is or will be implementing to keep its consumers and employees safe. This method, like notices, is not enforceable and does not absolve the business from liability; however, it does allow the employer to demonstrate the affirmative steps the business is taking to maintain a safe workplace.
Ultimately, businesses can have consumers sign a waiver that they will not be held liable if a customer contracts COVID-19, however, it must be crafted correctly to avoid the aforementioned factors. Alternatives to waivers are not enforceable and do not absolve the business from liability, but, they can effectively communicate the actions the business is taking to ensure compliance with local, state, and agency guidelines.
COVID Assurances – what kind of Assurances can a Business Provide to Customers, to Inform them that they have Taken Reasonable Measures to Ensure Safety and Health due to COVID?
A business can and should provide to customers what protective measures they are taking to ensure the safety and health of its customers and employees due to COVID-19. A business should inform both its customers and employees that they are taking the recommended steps in accordance with the CDC, OSHA, state, and local guidelines. The assurances vary according to which industry one is operating in; however, they all encompass some form of cleanliness, healthy employees, customer screening, consistent monitoring, individualized care if possible, isolating customers or employees, and preparedness in response to the pandemic.
A business should inform and provide customers with the following:
- Encourage personal hygiene,
- Providing receptacles
- Respiratory etiquette
- Assurance they are in compliance with CDC cleaning and disinfection recommendations,
- Practice social distancing,
- Taping areas off
- Using plexiglass as a shield
- Provide PPE if necessary,
- What safety and disinfectant measures are being taken in between customers, and
- Test customers beforehand via temperature screening.
Rideshare services should specifically develop a plan that informs and protects both the driver and passenger. The CDC recommends the following:
- Encourage personal hygiene such as providing assistance in acquiring hand sanitizer, disposable wipes, and cleaning products so that common surfaces can be wiped down by drivers,
- Provide employees with accurate information about COVID-19 including symptoms and how it can spread,
- Support sick drivers to stay at home, and
- Develop policies and technology that enable contactless transactions or minimize close contact interactions such as pens, and electronic signatures between drivers and passengers.
A business should also inform the customer of the measures the employer is providing its employees to increase their comfort. These can include some of the following:
- Providing PPE,
- Encouraging personal hygiene,
- Providing receptacles
- Respiratory etiquette
- Towels to clean their face and immediate surfaces
- Open communication,
- Implementing flexible sick leave and supportive policies and practices, and
- Daily in-person or virtual health checks.
It is important to consider that these recommendations are subject to change upon federal agencies developing more information about the virus and that these recommendations are variable to state and local recommendations. Florida encourages businesses to develop a plan that is specific to the workplace, identifies all areas and job tasks with potential exposures to COVID-19, and include control measures to eliminate or minimize such exposures.