WHAT TO KNOW ABOUT A CORONAVIRUS RELEASE
- The three states that have protection by law for businesses are Utah, North Carolina and Oklahoma to date;
- Legally, It is very difficult to prove where you contracted the virus;
- The Republicans are trying to pass blanket protections for business without blanket safety requirements;
- A release will generally not protect a business from it’s own negligence.
- Always pratice safety in public during the pandemic to protect yourself and your family from illness.
Now that things are slowly opening on a limited basis with restrictions lifting, the questions that are going to arise in legal minds are will there be a liability if people get the COVID-19 virus while they are out at a business. The biggest problem with this argument is that it is very difficult to prove how the virus was contracted. Businesses are currently concerned about the threat of being sued over liability for patrons contracting the virus at their establishments. Slowly the states are setting guidelines for businesses to follow and many businesses are taking it upon themselves to enact stringent cleaning procedures. Some states have put liability protections in place for businesses which include, at the writing of this blog, Utah, North Carolina, and Oklahoma to protect businesses from liability. Some politicians are pushing for broader liability shields for businesses in the upcoming coronavirus relief package.
In the meantime we are living in this ever fluctuating age of regulation, non-regulation and fear. Businesses are desperately trying to determine how to protect themselves from lawsuits and how to protect their customer safety. Many are instituting temperature checks and requiring people to fill out forms certifying they do not have COVID-19 symptoms. Masks are required in most states now and most establishments have additional procedures such as paper menus, different types of disposable condiment packaging, and new seating arrangements that include social distancing. Despite all of these precautions, many businesses are requesting that clients sign a COVID-19 waiver.
The ever-changing guideline structure of the COVID-19 pandemic, CDC guidelines, state regulations, city guidelines, and county regulations are putting businesses in a catch 22. They can be following procedures one day and they can change the next. Many governors are changing their mind on regulations on a weekly –sometimes daily basis. The COVID-19 release below is a standard release that we have seen being used by various businesses. Whether such waivers will actually protect businesses from lawsuits is still an open question. However, many states have a long history of enforcing liability waivers that stem from primarily the recreational industry such ski resorts, amusement parks and bounce houses. Whether you’re riding a horse, getting on a raft on a river, or tubing down a mountain, all of the activities that we enjoy that do come with some risk. Liability waivers have long been used by businesses in these type activities and have often been enforced.
However, like the pandemic itself, some states are not as apt to enforce liability waivers. In California, liability waivers are often not enforceable. That doesn’t mean that companies aren’t using them but often times it may not do much to change the ultimate outcome of the situation. It has long been established in the law that you cannot disclaim your own negligence. This means that as a business owner, if you act irresponsibly, you can be held accountable regardless of the waiver. Courts are inclined to enforce a waiver when the injury or illness that occurred was the natural and probable risk of the activity.
Based on an overall reading of the law, if businesses are following all of guidelines that are required of them by state and federal authorities and exercising caution, they may likely be protected. Such guidelines generally include requiring social distancing, wearing masks, using heightened cleaning procedures, using disposable utensils and condiments . It is likely that the liability waiver it would be enforced if said procedures are followed. Especially in conjunction with the fact that it is very difficult to prove how the virus or where the virus was contracted.
However if businesses are negligent by not social distancing patrons and not following guidelines, they may be held accountable despite the waiver. We are currently in an unprecedented situation and there is no rulebook for our current state of affairs. We must depend on businesses to use the best judgment and procedures they can to protect their customers . In return, customers must use caution and follow the rules to protect themselves during these difficult times.
This Release you may be asked to sign will likely look something like this:
Assumption of the Risk Waiver/Release
Assumption of the risk and waiver of liability relating to coronavirus/COVID-19 the novel coronavirus, COVID-19, has been declared a worldwide pandemic by the world health organization. COVID-19 is extremely contagious and is believed to spread mainly from person to person contact. As a result, federal, state, and local governments and federal and state health agencies recommend social distancing and have, in many locations, prohibited the congregation of groups of people. The XXXXXXXXXXXXXXXX (business name) has created new protocols and put in place prevention measures to reduce the spread of COVID-19; however Assumption of the risk and waiver of liability relating to coronavirus/COVID-19 the novel coronavirus, COVID-19, has been declared a worldwide pandemic by the world health organization. COVID-19 is extremely contagious and is believed to spread mainly from person to person contact. As a result, federal, state, and local governments and federal and state health agencies recommend social distancing and have, in many locations, prohibited the congregation of groups of people. The XXXXXXXXXXXXXX (business name) has created new protocols and put in place prevention measures to reduce the spread of COVID-19; however, This business cannot guarantee that you or your children will not become infected with COVID-19. Further, attending any program, event, gathering, may increase you or your children risk of contracting COVID-19.
By signing this agreement, you hereby acknowledge that the Contagious nature of COVID-19 in voluntarily assume the risk that you and or your children may be exposed to, affected by, subjected to, COVID-19 by attending this event/program/gathering, and that such exposure or infection may result in serious injury, illness, disability, and or death. I hereby understand that the risk of becoming exposed to or attracted by COVID-19 at this event, gathering, or program may result from the actions, I’ll Contagious nature of COVID-19 in voluntarily assume the risk that you and or your children may be exposed to, affected by, subjected to, COVID-19 by attending this event/program/gathering, and that such exposure or infection may result in serious injury, illness, disability, and/or death. I hereby understand that the risk of becoming exposed to or attracted by COVID-19 at this event, gathering, or program may result from the actions, omissions, or negligence of myself and others, including, but not limited to, company employees, volunteers, attendees, participants, other family members. I voluntarily agree to assume all of the foregoing risks and except soul responsibility for an injury to myself my family my children including but not limited to illness, injury, disability, hospitalization, damage, loss, expense, death, or liability, of any kind that I wore my children or family may experience or incur in connection with said attendance at this event, program, And or gathering.
On my behalf, on the half of my children, I hereby release, covenant not to Sue, discharge, and agreed to hold harmless sex business entity, it’s employees, it’s representatives, is agents, and it’s a science, from any and all claims, including liabilities, actions, damages, costs and/or expenses of any kind that may arise out of for the late there too. I hereby understand and agree that this release includes any claims based on the actions, omissions, and or negligence of X business entity, its agents, it’s employees, And/or it’s legal representatives whether the COVID-19 Infection occurs before, during or after participation in and attendance at said event
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