Why COVID-19 Waivers are a Good Idea – An Attorney’s Perspective
John Wolohan, J.D. 06/17/2020

As a professor of sports law at Syracuse University and a lead editor of the book, “Law for Recreation and Sports Managers”, attorney John Wolohan knows a thing or two about release of liability waivers. Below, Mr. Wolohan briefly explains why COVID-19 waivers might be a good idea for your business and why you should be using Smartwaiver to manage the waiver signing process.

The importance of using COVID-19 specific waivers
John Wolohan, J.D. | Syracuse University

As the country begins to slowly open again, a lot of companies and organizations are looking for guidance on how to proceed while at the same time protecting themselves from legal liability. In particular, because of the significant risk of transmission through physical or shared contact, especially companies in the services industries whose very nature requires physical interaction with their customers, are asking whether a specific waiver addressing the risks of COVID-19 is a good idea.

To help shed some light on this topic, this article will examine the issues and explain why waivers with specific provisions and language addressing the COVID virus are a good idea. To illustrate how important this topic is and the impact it is having on organizations, President Trump is requiring anyone who registers to attend his political rallies to sign a waiver specifically excluding them from suing the President’s reelection campaign or the facility if the they contract the virus at the event. Here is the language used:

“By clicking register below, you are acknowledging that an inherent risk of exposure to COVID-19 exists in any public place where people are present. By attending the Rally, you and any guests voluntarily assume all risks related to exposure to COVID-19 and agree not to hold Donald J. Trump for President, Inc.; BOK Center; ASM Global; or any of their affiliates, directors, officers, employees, agents, contractors, or volunteers liable for any illness or injury.”

Why Use a COVID Specific Waiver?

Given the uncertainty surrounding how the courts will view COVID-19 exposure claims, where a participant contracts COVID-19 while at your facility or while interacting with an employee, organizations should implement as many cautionary measures as possible. As a result, it is recommended that organizations develop waivers with specific language and provisions addressing the contraction of COVID-19. As discussed in previous posts, a waiver is a written agreement or contract in which the participant or customer, in exchange for the right to participate in an activity or use your facility, acknowledges the risks of the activity and agrees to relinquish his or her right to sue for injuries or damages arising out of the activity or services.

In order for a waiver to be enforceable, the courts will require that the waiver informs the participants of the risks associated with the activity and that the participants understand the risks associated with the services, as well as the rights they intend to waive. If your business is currently using a waiver, there is a good chance that it may already protect against liability for physical injury, illness, or bodily harm. The problem, however, is that since the COVID virus is so new, there are no legal precedents that show that the virus is covered under those terms. This is important because one of the main requirements of a legally enforceable waiver is that it be clear and unambiguous. If the language is not clear and unambiguous, the court may find the waiver void and unenforceable. Therefore, to make the waiver as clear and unambiguous as possible, it is essential that organizations include language in their waivers that expressly states that exposure to COVID-19 is a potential risk.

While COVID -19 may be the new normal, organizations can increase the likelihood that they will be protected from liability from COVID-19 claims with the use of COVID-19 language specific waivers. Here are three last things to keep in mind.

  1. It is important to require that all existing, as well as new, customers sign the new waiver before being allowed to participate or enter the facility.
  2. Waivers are only good against ordinary negligence. This means the waiver would be unenforceable if a participant were intentionally or recklessly exposed to the COVID virus. Such conduct would be considered gross negligence and outside the scope of the waiver. However, even with these limitations, it is no surprise many organizations have started integrating COVID-19 language into their waivers to specifically include the risk of contracting the virus.
  3. Using Smartwaiver for your COVID-19 waiver can further limit risk by providing a hands-free, contactless digital waiver solution.

Remember, you should always consult with an attorney before using a release of liability waver at your business. When you’re ready to convert your legal language into a digital smart waiver, contact the Smartwaiver Team.

- Attorney John T. Wolohan (jwolohan@syr.edu) is a professor of sports law at Syracuse University.

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