Weighing whether to use waivers in time of coronavirus

As stay-at-home orders were being lifted across the country, many businesses began considering liability waivers for clients and/or customers to sign. To date, no courts have reviewed any waivers specifically in light of COVID-19, but here are some general principles to follow in deciding whether they make sense for your enterprise.

Liability waivers are limited

Courts generally won’t enforce waivers that contravene public policy (we don’t 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 you at least need to follow the Centers for Disease Control and Prevention (CDC) and Executive Order guidelines for your business. If your industry has a national governing body or trade group, it also may have guidelines you need to follow.

Being able to say you followed the prevailing legal requirements and/or industry standard (whichever is stricter) will be helpful. Your insurance policy and insurance broker may be able to provide additional guidance. Also, remember, best practices may change over time, depending on the severity of any outbreak in your area.

Don’t overpromise

In any waiver, website, or other publicly available documents, be careful what statements you make about precautions your business is taking.