Apparently, if you wish to attend certain political campaign rallies, you need to sign a COVID-19 waiver first. This trend is not limited to the political arena but has been spotted in restaurants, salons, and gyms. Public gatherings, indoor meetings, and client-facing businesses have all required rethinking reasonable precautions as a prerequisite to becoming the "new normal." The larger question for most businesses is: What constitutes a reasonable precaution and/or will a COVID-19 waiver protect me?
What constitutes a reasonable precaution and/or will a COVID-19 waiver protect me?
All effective compliance management systems (CMS) include risk assessment and risk management components. Starting with the CMS policies and procedures, how is the COVID-19 risk assessed? A reasonable starting point is to review infection rates and trends at business locations. Some states have imposed "traffic light" systems tied to the infection rates: red light requires the strictest limitation, yellow light relaxes the limitations, and a green light indicates that restrictions have been lifted. Studies have identified that indoor meetings represent an increased risk, so what procedure should be followed? Again, reference to standards built into governmental guidelines represents a good baseline (i.e., the CDC "Guidance for Cleaning and Disinfecting" for public spaces or OSHA’s "Guidance on Preparing Workplaces for COVID- 19”). Some businesses use infrared no-contact thermometers at the point of entry and have hand sanitizers, masks, and gloves available for customers. Signs can be posted at all entry points requiring certain precautions for entry into the business premises, and notices can also be posted on business websites to reinforce safety precautions in place.
Should your business policy and procedure include requiring a COVID-19 waiver? There is no one answer to this question, but this is certainly a discussion to have with your legal counsel.
There are at least three infection sources to consider: employees, customers, and onsite vendors, and all three should be considered when readying your business to reopen.
COVID-19 waivers contain content that can vary from a laundry list to very short summaries. We have seen waivers that require you to acknowledge the risk of exposure to COVID-19 (i.e., Disney identifies severe illness and death) and outline precautions taken by the company to address the risk. Some include a long list of questions relating to exposure. For instance: Have you traveled in the last two weeks? Have you been tested for COVID-19? Aare you displaying any symptoms of the disease?
COVID-19 waivers have not been tested by the court system, so no one is entirely sure how they will be interpreted. Proving that infection was caused by a visit to a single site will likely prove difficult, but if the plaintiff becomes severely sick or passes away, the liability risk will be significant. Even if the case is won in the courts, the legal expense and reputation damage may be incalculable. The vast majority of insurance policies disclaim coverage for pandemics, so that the loss will hit the bottom line.
So the question posed at the top of this article is largely without a single definitive answer. As part of their CMS, each business should assess factors unique to its circumstances (e.g. infection rates, physical layout of premises, distancing of interaction with customers).
Protections should be implemented for the benefit of all building occupants, and personal protective equipment should be a requirement of entry into business premises. Will a COVID-19 waiver protect your business? There is no definitive answer, but after consultation with your legal advisor, it may be deemed an advisable addition to your compliance quiver.
DISCLAIMER: Content provided in this article is intended for informational purposes only and should not be construed as legal advice and should not be relied upon or acted upon without retaining counsel to provide specific legal advice based upon your particular situation, jurisdiction and circumstances. No duties are assumed, intended or created by this communication. No attorney/client relationship is being created by your review or use of this material.
Robert J. Wilson, Esquire (Bob) is a Philadelphia lawyer and is general counsel for ARMD Resource Group. Bob is the principal of Wilson Law Firm and has more than 30 years of experience both as a counselor and as a litigator in state and federal courts. Risk management, problem solving, and dispute resolution are his core competencies. Bob’s practice is largely in the consumer finance space, and he regularly consults with lenders and contributes articles on various compliance-related issues.