MRA’s Tom Clement: Should you consider using COVID-19 liability waivers?

Tom Clement
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BY TOM CLEMENT, MRA General Counsel

As the business reopening process expands to include hair salons and barbers, gyms, bowling alleys, ice rinks and other businesses that involve close human contact, the discussion around the effectiveness and enforceability of COVID-19 waivers has increased. I recently had a haircut appointment and before I could enter the building I had to have my temperature taken and complete a questionnaire. A friend of mine who owns a gym is taking precautions above and beyond mandated safety measures. Neither business, however, requires its customers to sign waivers. On the other hand, another friend of mine took his son to hockey practice the other day and was required to sign a waiver, perform a temperature check, and complete a questionnaire before they could enter the building. As I’ve listened to the conversations surrounding waivers and observed these interactions in my own life, I began to wonder if our members should be considering waivers for their customers or employees.

MRA argued for months that retailers were fully capable of a safe re-opening and MDHHS data clearly shows that we were right. The number of new cases associated with retail is remarkably low. The most important concern for any business is the health and safety of everyone who enters. This is accomplished by documenting and implementing State of Michigan and CDC protocols. MRA has worked hard to provide re-opening resources to our members. If you have any questions about your protocols, please visit our website at retailers.com or send an e-mail to askusfirst@retailers.com. In addition to health and safety, COVID-19 liability is rightfully at the forefront of every business owner’s mind.

The most pressing questions when it comes to waivers are whether they are enforceable and whether they might negatively impact business success or employee morale and loyalty.

Any COVID-19 liability waiver discussion should be premised on several important points. First, at this point in time, the enforceability of COVID-19 waivers are untested in court.

Second, both Congress and the Michigan Legislature are actively considering business liability protection legislation which, if signed into law, could negate or reduce the need for legal protection through a waiver. (See page 8 for more on this topic from Vice President of Governmental Affairs, Amy Drumm).

Third, a common misconception about any waiver is that it completely absolves a party from liability. The reality is that waivers may apply to ordinary negligence circumstances, but they will not be enforceable where intentional conduct or gross negligence occurs. While waivers may help in certain circumstances, what is critically important is the ability to demonstrate adherence to all state of Michigan and CDC guidelines.

In the most basic form a waiver is an individual’s acknowledgement that they are about to engage in an activity that includes some inherent risk and an agreement that they are assuming some degree of risk and giving up some legal remedies in order to engage in the activity. COVID-19 waivers may also include a specific acknowledgement that, at a minimum, all mandated precautions and protocols have been put into place. The analysis on whether one should be used is different depending on the relationship between the parties.

In the business-customer context, acknowledgement that precautions are being taken in accordance with the law and an assumption of some form of risk in order to partake in the activity has clear advantages but will not, in and of itself, relieve you from liability or avoid a lawsuit. Negligence lawsuits require a plaintiff to prove that the business was the proximate cause of the contraction of COVID-19. This can be difficult to prove, especially when the business can affirmatively demonstrate that they have followed the proper precautions and protocols. Without those, a waiver may carry no legal weight. With the proper precautions and protocols in place, the practical value of this waiver will vary depending on the nature of the business. A waiver may not be as critical for a retail store, operating under occupancy restrictions, with a customer base who conducts business in a socially distant manner, controlled environment and for a short period of time. On the other hand, a gym or ice rink, which operate in a less controlled environment with a customer base likely occupying the business for a longer period of time may have a different view.

The employee-employer context requires a different analysis. First, just like the business-customer context, no waiver can replace the requirement that businesses maintain a safe environment. Second, workers’ compensation laws do not permit employees to waive away their rights to benefits arising from disease or injury arising in the course of employment. Of course, just because an employee contracts COVID-19 does not mean it was in the course of their employment, but that will be the subject of a lawsuit regardless of whether a waiver was signed.

Third, employers need to consider how they will deal with employees that refuse to sign the waiver. Disciplinary action may lead to a separate set of legal issues, while requiring some employees to sign and others to not sign may result in resentment.

You need to consider also that requiring employees to sign waivers may negatively impact their morale.  Employers often speak of a team mentality while a waiver may project the opposite sentiment. While all businesses are different, the benefits in obtaining waivers from employees may be outweighed by the unintended consequences.

Finally, you should consider the impact implementation of a waiver requirement will have on your business. The retail industry is emerging from a very difficult several months and businesses are rebounding.

For example, consider the customers who may walk away and whether you want to sacrifice that business.

Maximum legal protection is always important, but in the context of COVID-19 waivers, you will need to balance the health of your business with the benefits of a waiver.