The COVID-19 pandemic has taken all of us into uncharted waters. After the unprecedented near nationwide shutdown, businesses are in various stages of reopening. The ability to reopen is often necessary for the very survival of a business. At the same time, a business may have valid concerns that an employee or customer could contract the virus while on the premises, and sue. In an effort to avoid costly litigation, some businesses are requiring workers and customers to sign a liability waiver or release.

Are Waivers the New Normal?

Just as social distancing and wearing a mask in public are now more mainstream, signing a liability waiver or explicitly acknowledging the associated risks before returning to work or entering a business may also become commonplace.

In mid-July, Walt Disney World Resort begins a phased reopening of its theme parks. Its webpage currently warns: "By visiting … you voluntarily assume all risks related to exposure to COVID-19 … an extremely contagious disease that can lead to severe illness and death."

Similarly, to register for the Trump campaign's recent Make America Great Again rally in Tulsa, Oklahoma, registrants had to click through a disclaimer, which stated in part: "By clicking register below, you are acknowledging that an inherent risk of exposure to COVID-19 exists in any public place where people are present … By attending the rally, you and any guests voluntarily assume all risks related to exposure to COVID-19 and agree not to hold Donald J. Trump for President, Inc. … liable for any illness or injury."

Even The New York Stock Exchange and some NCAA college football teams are requiring waivers, with the NYSE compelling traders to sign them before entering the trading floor, and the football programs making them a condition of participation.

For organizations that already suffered significant economic loss during the shutdown, the prospect of litigation may be enough to implement use of a liability waiver. For others, merely deterring frivolous claims may make waivers a good business decision. Yet some may find that such releases are not worth the trouble.

Legal Background

Typically, workers are covered under workers' compensation—and cannot sue their employer—if they are injured or become ill on the job, but questions remain unanswered regarding COVID-19 coverage. Generally, in order to qualify for workers' compensation benefits, a worker need not prove that the employer did anything wrong, only that the injury or illness is job-related. Illnesses like the cold or flu, however, are not usually covered under Florida's workers' compensation laws, because they are seen as a hazard of daily living. Though the Florida Department of Financial Services (DFS) has issued a directive to honor COVID -19 claims made by frontline state employees (such as police officers, first responders and state healthcare employees), this directive has not been categorically extended to all employees.

Customers meanwhile have long been able to pursue personal injury lawsuits based on the concept of premises liability if they were injured or became ill as a result of a business's negligence.

Does a Liability Waiver Really Work?

It depends.

The basic idea behind a liability waiver in the context of the pandemic is to protect a business from liability for damages if someone contracts the virus while working or visiting the business. In legal terms, this is accomplished by asking the person executing the waiver to "assume the risk" of contracting the virus at the business.

A waiver that requires an employee to waive the right to workers' compensation or unemployment benefits is unenforceable.

As for customers, liability waivers have historically been disfavored by Florida courts and limited in three important ways. First, only known risks can be assumed by the person signing the waiver—the waiver must clearly and specifically state the risks. Second, the waiver must be freely and voluntarily given, as opposed to a "take it or leave it" scenario, which is often the case due to the unequal bargaining positions between businesses and its customers or workers.  Finally, courts will generally not enforce waivers that seek to protect a business from its own gross negligence or intentional acts.  In other words, a business that purposefully or flagrantly ignores all governmental guidance on COVID-19 would likely not be able to seek shelter under a release.

Should I Require a Waiver for My Business?

If you are a business owner concerned about coronavirus-related liability, a carefully drafted waiver may provide some protection. However, to help ensure enforceability, you should consult an experienced business law attorney. The document and its implementation need to be uniquely tailored both to your business and to the ever-changing laws and guidance related to COVID-19.

Business owners should also carefully weigh the potential, nonlegal impacts of waivers, including on P.R. and company culture. Such risks may outweigh potential rewards.

Attorney Jeffrey Lieser is a founder of Lieser Skaff Alexander in Tampa.