You may have seen signs on stores, or signed COVID waivers when you go to your doctor or dentists. Are these required? Are they legal? Are they a good idea?
Posting Notice to Customers
Some states have enacted COVID-immunity laws protecting businesses from claims that customers contracted COVID-19 while on the business premises. Georgia was one of the most recent states to provide this immunity, which generally protects businesses unless they involve “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.” However, to invoke the presumption of assumption of risk, businesses must either provide a receipt, or post at the entry, a sign containing this language:
Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.
Several other states (including Louisiana, North Carolina, Oklahoma, Utah, and Wyoming) have passed similar liability protection measures to address business concerns related to reopening during the COVID-19 pandemic. Most include similar exceptions for gross negligence or willful conduct, meaning that lawsuits, and jury assessments of conduct, will still occur.
North Carolina requires businesses to provide “reasonable notice of actions taken … for the purpose of reducing the risk of transmission to individuals present on the premises.” However, there is no specific language required for the notice. Businesses should work with legal counsel to discuss how to best summarize their COVID precautions for the notice.
Oklahoma’s Senate Bill 1946 offers broader protections than North Carolina’s new law. The legislation, signed into law by Gov. Kevin Stitt (R) on May 21, makes everyone immune from liability for any claim by a person who was exposed to COVID-19 as long as no laws were violated and the person or business accused followed official safety guidance.
Wyoming’s Senate File 1002 provides immunity from COVID-19 claims to any person or business who acted in good faith and followed safety instructions for the duration of the public health emergency.
How effective these legislative efforts will be at protecting businesses from litigation is still a big question, however. Most include reference to adhering to safety guidelines, for example. With safety guidelines available from the CDC, OSHA, and state and federal agencies, and directives from federal, state and local authorities pertaining to COVID-19, the potential for conflicting best practices is high.
Requiring Signed Waivers
Physicians, dentists, schools and camps have also started requiring waivers. Here is some typical language:
I acknowledge and understand that there is a risk that by engaging in _______ I or my child can contract COVID-19. I also acknowledge that due to their physical nature, these activities carry a greater risk than other activities of exposure to COVID-19. Even when all reasonable precautions are taken, there is an unavoidable risk of exposure to COVID-19.
The enforceability of such releases varies by state. As discussed above, some states have explicitly immunized companies from the risk of COVID exposure. Courts in states without such statutes will assess the enforceability. At a minimum, a well-worded waiver services to put the patient, customer or parent on notice of the risks involved in the activity.
Check to see if, like Georgia, your state requires notices about COVID to be placed at your entrances in order to benefit from the protection of state statutes.
If your patients, customers or students are placed at increased risk by using your services, consider requiring them to execute a waiver indicating that they assume the increased risk, and release your business from liability. Your attorney can help draft the most appropriate language.