Who’s to Blame? COVID-19 Liability Shields and Waivers.

2020-10-12 | 5 min read

photo by erik mclean

Lawyers are bracing themselves for COVID-19 litigation.  Every area of the law from employment, to contracts, to personal injury is going to feel the impact of litigants looking to protect their rights during the pandemic.  On the other hand, lawmakers and private entities alike are batting down the hatches and preempting some of these impending lawsuits.

Many states – and potentially the federal government – are enacting legislation shielding certain industries from COVID-19 liability in an attempt to protect businesses who may be targets of exposure lawsuits.  Critics, however, say these protections may be counterproductive in curbing the spread of the still-raging virus because it would permit bad actors to shirk their responsibility to operate safely.[1]

In a time when risk of illness and death is so high, liability shields and waivers spread the risk back to individuals rather than institutions, but this is of course at the expense of the very American tradition of seeking compensation when your injuries were caused by another’s negligence.

The Proposed Federal Bill

A proposed federal bill called the Safe to Work Act sets forth its reasoning for a liability shield:

One of the chief impediments to the continued flow of interstate commerce as this public health crisis has unfolded is the risk of litigation.  Small and large businesses, schools, colleges and universities, religious, philanthropic and other nonprofit institutions, and local government agencies confront the risk of a tidal wave of lawsuits accusing them of exposing employees, customers, students, and worshipers to coronavirus. Health care workers face the threat of lawsuits arising from their efforts to fight the virus.[2]

This is fairly straightforward.  Republicans in the Senate want to get people back to work and school, but don’t want their employers or universities to be held responsible if they get sick.  Nor do they want to see CARES Act money diverted to “opportunistic trial lawyers.”[3]

This bill would bar “Coronavirus exposure actions” and “Coronavirus-related actions.”  In other words, the bill would bar recovery by plaintiffs alleging that someone else, like their employer or college, caused their Coronavirus exposure.  The shield would not apply to entities that were not making reasonable efforts to comply with government standards, acted with gross negligence or willful misconduct, and actually caused the Coronavirus exposure.[4]

This bill is unlikely to pass in the House of Representatives, but it illustrates similar bills that have been proposed and passed in many states.

Georgia’s Recent Legislation

Georgia’s COVID-19 Pandemic Business Safety Act was passed on August 5, 2020, and like its federal counterpart, it protects businesses from COVID-19 lawsuits, except for those caused by gross negligence, willful misconduct, or recklessness.  These are notoriously high standards to meet, and if it wasn’t going to be difficult enough to sue a Georgia business, the law provides an additional layer of protection to businesses who warn customers about the potential dangers of patronizing their business.  Courts will presume that the customer assumed the risk, making it nearly impossible for the plaintiff to recover unless they can successfully rebut the presumption.[5]

Tennessee is about to pass similar legislation, joining North Carolina, Utah, Wyoming, Mississippi, Oklahoma, Louisiana, and Kansas.[6]

New York’s Medical Care Protections

Months ago, New York’s legislature passed the “Emergency or Disaster Treatment Protection Act,” which shielded medical facilities and health care workers from civil and criminal liability during COVID-19.  The immunity did not apply only to COVID-19 patients, but to all patients during the pandemic.  The liability shield provision was somewhat “slipped in,”[7] however, and most of the legislature admitted to not understanding the implications of the bill.  As a result, nursing homes were protected from liability.  This law was heavily criticized as a violation of patients’ rights.  In a state that had 6,600 nursing home COVID-19 fatalities, residents and families had no channel to hold bad actors accountable.[8] The rule has been rolled back to allow medical providers to be held liable by patients not being treated for COVID-19, but patient’s rights advocates believe the shield is still too broad.[9]

Liability Waivers

In the absence of legislation, or to supplement statutory liability shields, some organizations have turned to traditional liability waivers.  Gyms, salons, and dentists’ offices are now requiring customers to acknowledge and accept the risk of contracting COVID-19.[10] Liability waivers are typical for more inherently dangerous activities, like skiing, but when going into public is inherently dangerous, a liability waiver could make sense for business owners to protect themselves.

Liability waivers may pose some unfair challenges for populations who don’t have a lot of bargaining power.  Students are facing one such challenge.

Many prominent U.S. universities are requiring students to sign an “informed consent agreement,” legalese for “liability waiver.”[11]  Pennsylvania State University (Penn State) got some public flak after its student waiver made headlines.  Penn State has about 100,000 students.  It asked students to sign “The Penn State COVID-19 Compact,” which had them “assume any and all risk of exposure to COVID-19” while at Penn State. [12]  Penn State argued that this was never intended to be a waiver of legal rights – it was merely an acknowledgement.  After the public backlash, Penn State backtracked and offered an amended compact, which says “Even with the mitigation steps taken by Penn State and my compliance with this compact, I acknowledge that Penn State cannot prevent the risks of exposure to COVID-19 that may result from attending Penn State or participating in Penn State activities.”[13] This language notable removed the phrase “assume any and all risk,” the operative phrase in a liability waiver.

Liability waivers aren’t always enforceable, and COVID-19’s peculiar circumstances may create some novel legal questions.  Whether a waiver is enforceable varies across jurisdictions, but they are generally permissible if the language is clear and the release does not violate public policy.[14] There is also something to be said about the bargaining power of the parties.  Universities and schools across the country are handling this virus vary differently, but it seems unlikely that students would opt out of returning to school if they disagreed with how their school was handling Coronavirus.  So students presented with a mandatory liability waiver have two options: sign, or skip a year of school.  For universities that opt to go liability waiver route, here will be some serious questions about whether they will be enforceable in court, or whether students will be permitted to bring a lawsuit if their semester goes terribly wrong.

So Who Is to Blame for COVID-19 Exposure?

Americans are notoriously litigious.  Thousands of Coronavirus lawsuits and complaints have already been filed, and more are to come.  Though the Senate fears frivolous lawsuits and opportunistic lawyers, the general public fears that the government is not looking out for their health and safety.  Liability shields and waivers protect businesses, but they also take away one of individuals’ only recourse to hold institutions accountable.  Some legal experts say the existing negligence standard would have protected businesses that were taking reasonable precautions under the circumstances, so the anticipated influx of litigation in most industries was overblown.[15]  The real outcome of these shields will be to send a message to businesses and employers that it’s safe to return to work – or to Disney.

Disney is another one of many companies warning its potential customers of the health hazards related to COVID-19, a tactic designed to shift the assumption of the risk to the Disney-goers.[16]  Disney’s opening creates an ethical and legal dilemma – should Disney close at its own expense for the health and safety of its patrons?  Or should it remain open and place the burden of discretion on vacationing families?

By this point in the pandemic, it is safe to say that yes, everybody knows and reasonably should understand the risks of Coronavirus, but tort liability has been an important mechanism in American history to make companies culpable for the safety of their customers.  COVID-19 calls into question American personal injury law’s role in consumer protection, and the upswing in immunity for businesses seems to chalk up a point on the side of the private entities, and a zero on the side of individuals.