Mitigate Your Organization’s Risk as We Begin to Open for Business

Amy Burma, Esq. is an attorney in Boulder, Co who specializes in employment law.

Following an unprecedented economic and societal lockdown as a result of COVID-19, localities are cautiously beginning to authorize businesses to open in some form as they continue to weigh risks posed to the public against the crippling impact of the economic shutdown. As we continue to learn more about the current coronavirus one thing has become clear: there is no foolproof way to prevent the spread of COVID-19, regardless of the precautions and safety measures we put in place. This realization is especially important for those businesses that – by the nature of their business – necessitate close personal interaction with our customers or attract groups of people.

As businesses contemplate what the “new normal” will look like for their respective organizations they must proactively take steps to minimize their liability. This will look different for each organization depending on what their pre-pandemic looked like. Organizations that regularly had their customers sign liability waivers may consider expanding their waivers to include COVID-19 associated risks. Other businesses that historically did not require liability waivers may now deem them prudent as a protective measure given the current environment.

Regardless of the situation you find yourself in, this is an opportunity to reevaluate risk posed to your livelihood. A liability waiver can be an effective way to mitigate your risks.

What is a Liability Waiver?

A liability waiver is a written contract between two or more parties. Essentially, one party (usually the client or customer) accepts the risk or engaging in an activity or accepting the services of the other party (usually the business). Waivers can limit the exposure of businesses because the client/customer agrees to prospectively waive their right to sue the business for damages or injuries arising out of the services or activities associated with that business. The waiver can standalone or be inserted as a clause in the service contract.

In a pre-pandemic world, waivers were an effective tool to limit liability. However, it is unclear if waivers will be enforceable in the current environment. This is due to the simple fact courts have not been faced with the question of the enforceability of these waivers in the context of a pandemic. The good news is that basic legal principles can be instructive in these times of uncertainty.

There are at least four types of waivers:

Signs on a Door at a Place of Business
A Checkbox as Part of a Registration Form
Traditional Paper Waivers
Digital Waivers from Smartwaiver

Out of these options, businesses should consider using a digital waiver from Smartwaiver.

Merely posting a sign or having a checkbox may not be as likely to be upheld in court as there are issues relating to unconscionability.

Both paper waivers and digital waivers have tailored language for a specific business and require a customer to accept the terms of the waiver. As a result, paper waivers and digital waivers are more likely to be upheld in court and less likely to have issues with unconscionability.

However, unlike paper waivers, smart waivers come with the added benefit of allowing a business to be contactless, which is particularly important in light of COVID. Additionally, a digital waiver makes it easier for businesses to provide clients with a copy of the waiver and eliminates the burden of storing physical files and copies.

Amy Burma, Esq. is an attorney in Boulder, Co who specializes in employment law.