Arlington, Virginia, resident John Breyault's first haircut in months included a few extra steps that had never been a highlight of his pre-pandemic trims. "Before they let in me in the door, they took my temperature and had me sign a COVID-19 liability waiver," recalled Breyault, a public policy expert with the National Consumers League.
Long a part of high-risk activities like skydiving, liability waivers are expected to become commonplace in ordinary settings where social distancing is a challenge. That includes theme parks, live events, beauty salons and doctors' offices.
Even Donald Trump's re-election campaign is requiring people who go to his political rallies to formally agree they won't sue the president or other parties if they contract COVID-19 after attending a gathering.
"Consumers should expect to be asked to sign more of these liability waivers at least for the foreseeable future," Breyault said.
In signing the hair salon's waiver himself, the policy expert was heartened to read in the document about the steps the business is taking to curb the spread of the coronavirus, such as requiring employees and customers to wear masks. Without such reassurances, Breyault said he would have had second thoughts about the safety of the services being offered.
"If you're being asked to waive your rights, and the contract isn't detailing what the company is doing to protect you, that would be a red flag for me," he said.
While waivers could become part of the new normal as long as the pandemic continues, liability attorney Richard Bell does not foresee a flood of COVID-related litigation. The bar for winning such negligence cases is high because plaintiffs must prove that health mandates were ignored and that their infection is directly linked to the entity being sued, Bell said.
As of mid-May, there had been only about 45 personal injury or death liability cases related to the coronavirus, and more than half had to do with cases contracted on various cruise ships, the lawyer noted.
Still, waivers don't shield a business from its obligation to protect customers by following state or county public health rules. "I understand businesses are being advised to get people to sign the waivers, but that's not necessarily going to immunize them to lawsuits," Bell said.
Breyault, a consumer advocate, agreed, saying a liability waiver would not protect a gym that employed a personal trainer who continued to work even knowing he or she was infected with the virus, citing just one example of potential liability. Gross negligence also wouldn't protect a business, said Bell, citing a hypothetical restaurant owner "putting tables two feet apart when everybody knows it's six feet" under social-distancing rules.
Consumers should educate themselves by looking at what the U.S. Centers for Disease Control and Prevention and their state health department have to say online, he advised.
Along with being asked to sign a liability waiver, consumers can also expect to see more notices posted that serve as implicit waivers — a general warning that people enter an establishment at their own risk.
For instance, concerns about liability are front and center as Disney starts reopening its theme parks and resorts, with the company cautioning on the Magic Kingdom website: "An inherent risk of exposure to COVID-19 exists in any public place where people are present." Visitors "voluntarily assume all risks related to exposure to COVID-19," Disney states.
Colleges and universities are also looking to shield themselves as they reopen campuses, with the American Council on Education recently calling on Congress to "quickly enact temporary and targeted liability protections related to the COVID-19 pandemic."
According to a May 28 letter to lawmakers, institutions of higher learning have "fears of huge transactional costs associated with defending against COVID-19 spread lawsuits, even when they have done everything within their power to keep students, employees and visitors safe."
The request was questioned by Senator Elizabeth Warren at a congressional hearing last week, with the Massachusetts Democrat noting that the law applies "liability only when the college has behaved unreasonably under all circumstances."
First published on June 12, 2020 / 9:10 AM
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