With U.S. states emerging from weeks of pandemic lockdown, many businesses are asking customers to sign COVID-19 liability waivers before entering.
These legal documents were once reserved for risky activities like skydiving and rock climbing. But until an effective COVID-19 vaccine is available, simply venturing outside your house increases your risk for contracting the new coronavirus and developing COVID-19.
Especially in parts of the country, such as Arizona, Texas, and Florida, where infections continue to rise.
Given this “new normal,” gyms, yoga studios, hair salons, and other businesses are using liability waivers to shield themselves from lawsuits should a customer later develop COVID-19 or even die from it.
Even President Donald Trump is reportedly asking people to sign a disclaimer excusing his campaign from liability if they attend a rally in Oklahoma later this week and then contract an infection.
We talked to experts about what you need to know about these waivers and what rights you still have if you sign one.
COVID-19 waivers vary. However, by signing one you basically agree not to hold a business liable if a COVID-19 outbreak is traced back to that place and you get sick or die from COVID-19.
Of course, businesses are still expected to protect customers from COVID-19 by following state and local public health guidelines on sanitizing surfaces, physical distancing, and use of masks and other protective gear.
But if a business ignores those guidelines — such as by packing people into a yoga class or not regularly cleaning high-touch surfaces — and you’ve signed the waiver, you may be out of luck if you get sick.
“A liability waiver is truly a waiver, meaning that even if the operator of the business is in fact negligent, the person that is injured gives up the right to sue,” said W. Bradley Wendel, a law professor at Cornell Law School.
How waivers are viewed in court varies by state. But waivers do need to follow the normal requirements of contract law, such as being clear and easily understood.
Wendel says waivers for recreational or optional activities — such as skydiving schools, go-kart tracks, and political rallies — are generally enforceable.
But New York City–based liability attorney Richard C. Bell says there’s still room for interpretation when it comes to waivers.
“By signing the waiver, it doesn’t necessarily mean that you can’t sue or be successful in a lawsuit,” he said.
Whether a waiver holds up in court depends in part on what the business did or didn’t do to protect customers from COVID-19.
“In virtually all the states, you can contract out of what’s called ordinary negligence, but not gross negligence,” Bell said.
So, if a business isn’t cleaning as often as it should or isn’t making sure everyone is following physical distancing all the time, the waiver may still be valid.
But if a restaurant puts its tables 2 feet apart instead of 6, or a gym allows an employee to come into work with symptoms of COVID-19, a court may decide that that’s gross negligence.
For a lawsuit to be successful, Bell says you’d also need to prove that you contracted the virus from that business.
This can be difficult, because you may have come into contact with people at many locations other than that business, and it can take up to 14 days after exposure to the virus to start showing COVID-19 symptoms.
Wendel says, unfortunately, if you don’t want to sign a waiver, there’s not much you can do, other than go to another business. But the other business may have a similar liability waiver.
“It pretty much is take it or leave it,” he said. “You’re not going to be able to sit there and negotiate the language of the waiver with the person at the front desk.”
The good news is that fear of lawsuits isn’t the only incentive that businesses have to follow the recommendations of the Centers for Disease Control and Prevention (CDC) or state health departments.
“Businesses are also concerned about their reputation,” Wendel said. “And they are presumably run by reasonable human beings who don’t want to see people get hurt.”
Bell recommends that you be proactive by asking a business to explain what procedures it has in place to protect its customers. Some businesses may have signs posted at the front door or notices on their website explaining this.
“If you’re in any way uncomfortable about what you observe,” he said, “walk away and go to another establishment.”
This is exactly what Arnold Schwarzenegger did recently when he found out that Gold’s Gym in Venice, California, wasn’t requiring people to wear masks while working out.
If you’re concerned about COVID-19, especially if you’re older or have an underlying health condition, you can reduce your risk by avoiding certain activities or businesses.
According to the CDC, “the more closely you interact with others and the longer that interaction, the higher the risk of COVID-19 spread.”
Before you head out, think about how many people you’ll interact with, whether you can stay at least 6 away from them, if you’ll be indoors or outdoors, and how long you’ll be near others.
Some of the highest-risk places for COVID-19 include bars, concert halls, churches, community pools and beaches, public transportation, and many workplaces.