By: RSPA General Counsel Bob Goldberg
As essential businesses, Resellers were able to remain open and support their end-users. As the risk of contracting COVID-19 continues, businesses are concerned for liability to customers and employees should they contract COVID while providing services or working. Risk of COVID continues and until a vaccine is developed precautions must be taken. You may have seen signs on stores, or signed COVID waivers of liability in order to enter an establishment. Are these required? Are they legal? Are they a good idea?
Some states have enacted COVID-immunity laws protecting businesses from claims that customers contracted COVID-19 while on the business premises. The Federal Government has also debated a nationwide immunity from COVID claims, however as the date this was written none has been enacted. State laws generally protect businesses unless their conduct involve “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.” Individuals assume a risk when they voluntarily enter a business. However, for a dealer to invoke the presumption of assumption of risk, it should either provide a printed or electronic warning, or post at the entry, a sign containing this language:
Under State law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.
Although there are legal protections, it remains possible that a lawsuit will be brought contending the busines engaged in gross negligence, misconduct, or harm. It will be up to a jury to determine if the business conduct was outside the legal protections. As an example, a business that failed to have employees wear masks, social distance, or provide sanitizer may be assessed by a jury as being negligent. This may even be true even if an employee wears a mask, but failed to cover their nose. Specific and enforced company policies are essential to qualify for statutory immunity.
States that have passed COVID immunity legislation include Georgia, Louisiana, North Carolina, Oklahoma, Utah, and Wyoming. These laws vary and should be reviewed to determine the requirements. Numerous other states are considering legislation as well. A Federal provision would apply to every state. How effective these legislative efforts will be at protecting businesses from litigation is still a big question. Most laws include reference to adhering to safety guidelines available from the CDC, OSHA, and state and federal agencies, and directives from federal, state and local authorities pertaining to COVID-19. The potential for conflicting best practices is high. Establishing that COVID was contracted at a specific location may even be higher.
Businesses have also started requiring waivers. Typical provisions state:
I acknowledge and understand that there is a risk by entering _________. By entering I may contract COVID-19. Even with all reasonable precautions being taken, there is an unavoidable risk of exposure to COVID-19. I assume all risk by voluntarily entering. Signed _____________
The enforceability of such releases varies by state. As discussed above, some states have explicitly immunized companies from the risk of COVID exposure. Courts in states without such statutes will assess the enforceability of waivers. At a minimum, a well-worded waiver serves to place customers on notice of the risks involved. If you are bringing end-users into your business for demonstrations a waiver is suggested.