For many business owners, coronavirus is one of the biggest challenges they've had to face. Business-as-usual has gone out the window as masks and social distancing have become the norm. COVID-19 is part of our reality now, at least until a vaccine comes along. Businesses must learn to survive and thrive in the new coronavirus economy.
As a good business owner, you want to protect your customers, your employees, and yourself. Despite your best efforts, what happens if a customer or employee catches COVID-19 and traces their transmission back to your business? Can they sue you?
Like other states, Pennsylvania and New Jersey have both enacted rules on how businesses can reopen and restart services. These policies are in addition to the national guidelines set by the CDC. As your business continues to operate, you must follow all local, state, and federal laws. That's a lot to keep track of, especially when some requirements change daily or weekly depending on the COVID-19 case count in the region.
In response to these changes, many business owners are turning to COVID-19 liability waivers to protect themselves from being sued in case of an outbreak.
Liability waivers are not new. You may even use them already to limit your legal responsibility for accidents or other harms that may occur at your company. Now business owners are using COVID-19 waivers as a way to proactively limit their potential liability by requiring all guests, potential customers, and even employees to sign.
Whether you need a COVID-19 waiver depends on the nature of your business. Your best bet is to talk to an experienced local Pennsylvania and New Jersey business lawyer about your options. Call the Holmes Business Law Firm at 215-482-0285 for a consultation today. We can help you take the right steps to move forward.
What Can a COVID-19 Waiver Do for Your Business?
Because COVID-19 safety guidelines continue to change daily, a liability waiver can help protect you and your company against lawsuits from factors you cannot control.
Simply put, a liability waiver or “release form” is a legal document signed by a customer or employee. The signer agrees to accept certain risks and waive the right to sue your company. You may have noticed more liability waivers lately in places like gyms, salons, restaurants, and doctors’ offices. You may have even signed a COVID-19 waiver yourself in the last few months.
Not all liability waivers are created equal. You need a strong waiver for it to be valid. If your waiver isn’t written correctly, it won’t be enforceable in court. You can't simply create a blanket liability waiver against all harm and expect it to protect your business. In fact, waivers that are too broad are most likely to backfire, leaving you vulnerable to lawsuits.
To be valid, your COVID-19 waiver must be well-crafted and narrowly tailored to its purpose. This is why template liability waivers you find online might not work. If it’s not written specifically for your business, a court may decide that the language is too broad.
In Pennsylvania, a liability waiver is considered valid if it is:
● Clearly worded with no ambiguities,
● Prominent (not hidden in the fine print of a long contract), and
● Signed by the person waiving their right to sue.
Your waiver must make clear exactly what your customers or employees are signing. The average reader should be able to immediately understand they’re signing a document that will limit their legal options for the future.
To be enforceable in Pennsylvania, your coronavirus liability waiver must:
● Have clear language that focuses on the risks of COVID-19,
● Avoid “any and all liability” language that is too broad, and
● Avoid generic or cookie-cutter text, such as from a template.
The more vague or generic your waiver, the less likely it is to be enforced. For example, a waiver against the general risk of contracting a disease or becoming ill would not be enough.
The best COVID-19 waivers with the strongest chance of enforcement should include:
● A description of the symptoms of the virus,
● An explanation of how the virus may be transmitted,
● A statement explaining that asymptomatic carriers could transmit the virus, and
● Confirmation that the person signing voluntarily and knowingly takes on the risk of contracting COVID-19 by patronizing your business.
You will likely need a separate waiver for customers and employees since each interacts differently with your company. Your lawyer can help you draft both documents in a way that protects your business against liability from all sides.
Limits of a COVID-19 Liability Waiver
Keep in mind that a liability waiver cannot be used to release businesses from reckless, willful, wanton, or intentionally harmful conduct. Out of concern for public policy, you can’t simply waive all liability and then walk away free of all responsibility.
So even if your business has a coronavirus liability waiver, you must still enforce proper protocols to protect customers and employees from transmission of the virus.
That means following local, state, and federal guidelines whenever possible by:
● Enforcing mask and social distancing policies
● Implementing new hygiene protocols
● Performing additional environmental cleaning
● Encouraging sick employees to stay home
● Providing personal protective equipment (PPE) when necessary
If you fail to take these reasonable or required precautions, your business could still be on the hook for damages even with a COVID-19 waiver in place.
A dedicated Pennsylvania business lawyer can help you avoid liability by drafting a robust waiver and staying on top of any required workplace safety precautions.
Hiring a Lawyer to Create Your COVID-19 Liability Waiver
The coronavirus pandemic has thrown so much of our lives into uncertainty. Don’t add to your worries by trying to create a liability waiver yourself out of samples you find online. Worst case scenario, you get a waiver that you think will protect you except it gets struck down by a court. This leaves you vulnerable to costly lawsuits.
With the constant news and near-daily changes to coronavirus guidelines both nationally and on the state and local levels, your best option is to cover all your bases with an experienced Pennsylvania and New Jersey business lawyer.
There is no substitute for the personalized solutions we provide every day to our clients at Holmes Business Law. Our attorneys are dedicated to guiding business owners into making the best possible decisions for their business. We are committed to protecting your business for the long haul. You can rest easy with your coronavirus compliance in our hands.
Call our office now at 215-482-0285 to speak to an attorney about creating an enforceable COVID-19 waiver for your business.
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Sarah E. Holmes is a Philadelphia business attorney and strategist that helps start ups and established businesses looking to expand, protect their assets and increase their profits in an approachable, down-to-earth way. When you're looking for a business lawyer in Philadelphia, the Main Line or New Jersey, we can help.