If your business is open and looking for employees and/or customers to come back in person, are you utilizing COVID-19 liability waivers for either the customers or the employees?
Some businesses have opted to do so, with the theory that it will limit their liability should a customer or an employee contract the illness on the premises. However, the benefits to doing so are limited, and the reasons for not doing so are lengthy.
The primary benefit to having a waiver is that it might reduce the likelihood that people will come after the organization if they think they contracted the virus there or if they think someone they know did. Waivers may minimize frivolous suits. This, however, is seen by many as a thin justification.
However, there are a lot of reasons these waivers may not be useful. For example:
- Having to sign a waiver may make employees or customers think twice about being willing to come back, even if they weren’t previously on the fence about it. They may wonder why they’re there in the first place if the situation warrants a waiver.
- People may be wary that a waiver indicates the business is not actually doing what it can to prevent the illness from spreading.
- Waivers may not be enforceable anyway, depending on the details of the situation. This may vary state by state; some states will deem them unenforceable on the surface, rendering them pointless. Others may assess on a case-by-case basis.
- If a business is negligent, a waiver probably won’t matter, even if it would otherwise be enforceable.
- These types of lawsuits, when they do occur, will be difficult to prove anyway. It will be difficult and costly to actually prove the origins of a given case of COVID-19 without significant investigation that most people will not undertake. Even if they could, if the business were taking reasonable precautions, it likely wouldn’t be legally liable anyway unless there were some form of undue negligence.
- On the other hand, a signed waiver may not actually stop someone from bringing a case if the person feels he or she has one. Even if that person is wrong, there are still costs involved in defense, so the waiver may not be useful even if signed.
- Some fear that broad immunity for businesses would disincentivize organizations from ensuring they’re taking all appropriate steps to reduce transmission—which is clearly not a good outcome in the big picture.
This entire discussion may prove unnecessary, as this question is currently being debated at the national level legislatively. Many who are watching the debates say it is unlikely to pass, however.
That said, some states have already passed their own state-level business immunity laws. Check your state and local jurisdictions on this one. Current laws already offer some protections anyway that render waivers unnecessary.
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.
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