Risky Business: Waivers & Assumption of the Risk of COVID-19 Exposure

Businesses are navigating an uncertain transition as stay-at-home orders expire and states begin a gradual shift out of lockdown.

One challenge to reopening is the risk that third parties will sue, alleging that they contracted COVID-19 due to the business’s negligent failure to implement reasonable precautions to prevent its spread on business premises. Because it is not possible to eliminate the possibility that third parties may fall ill after visiting a business (regardless of the actual source of their infection), businesses need a strategy for mitigating this potential liability.

Certain industries that expose customers to unavoidable risk, such as recreational sports, have historically used waivers to manage liability. In light of the unavoidable risks posed by the COVID-19 pandemic, other businesses may now be wondering whether COVID-19-specific waivers in which patrons assume the risk of contracting the disease can provide them with protection. While certain considerations and limitations outlined below may constrain the benefits of such waivers, and there is no clear precedent relating to communicable disease waivers during a pandemic, meaning that the enforceability of these waivers will likely be a matter of first impression for courts to grapple with in the coming months, there is a real possibility that in some jurisdictions, such liability waivers can provide greater certainty and stability during the difficult process of reopening.

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