Waivers in the Time of Coronavirus
As Georgia businesses consider reopening or expanding after Gov. Kemp’s most recent executive order, many are considering liability waivers to have clients and/or customers sign. To date, no courts have reviewed any waivers specifically in light of COVID-19, but there are some general principles available.
First, know that liability waivers are limited. Courts generally will not enforce waivers that contravene public policy (we do not yet know where the coronavirus falls), excuse intentional conduct, or attempt to avoid liability for gross negligence. So, while a liability waiver is a good idea, it cannot substitute for following the standard of care for your industry. In the coronavirus context, standard of care means that you need at a minimum to follow CDC and executive order guidelines for your business. If your industry has a national governing body or trade group, there may also be guidelines there that you need to follow. Being able to say that you followed the prevailing legal requirements and/or industry standard (whichever is stricter) will be helpful. Your insurance policy and insurance broker also may be able to provide additional guidance. Also, remember that best practices may change over time, depending on the severity of any outbreak in your area.
Second, in any waiver, website, or other publicly-available documents, be careful what statements you make about precautions your business is taking. For example, if you say on your website that you are following all guidelines, but miss a few, then you may have a harder time enforcing a liability waiver. Only promise what you can do, and do what you promise.
Next, be very clear in your waivers. If you have your lawyer draft one for you, be sure that clients and customers will understand and read it entirely. The more legalese that the waiver has, the harder it will be to understand and enforce. If you do not understand it, then your clients will not understand it, either. Do not hesitate to send it back and ask for a version that you can understand.
Furthermore, be very clear what rights a client is waiving. The waiver should include all claims, as well as costs and expenses. If there is any confusion, a court will construe the waiver against the business.
Finally, reiterate that clients have a responsibility, in this situation, related to their health. Take the opportunity to have clients reaffirm that they have no symptoms, have not traveled to areas of known infection in the last 14 days, and have not come in contact in the last 14 days with anyone showing symptoms. Getting through this virus will be a team effort, and clients need to be part of the team.