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Can You Waiver Your Right to Sue For Getting Covid-19?

As America opens up after the Covid-19 quarantines, businesses, and organizations are seeking to shield themselves from the potential legal consequences of opening early. Organizations from gyms to political campaigns are using waivers to protect themselves from legal liability for Covid-19. One of the most infamous waivers can be found in disclaimers for Trump Campaign Rallies:

“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,” and “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.; BOK Center; ASM Global; or any of their affiliates, directors, officers, employees, agents, contractors, or volunteers liable for any illness or injury.”

Similar waivers are appearing in gyms, college courses, hair salons, and other businesses across the country. Are these waivers enforceable even as infection and date rates for Covid-19 are skyrocketing across the country?

covid waiver formWhat If I Didn’t Read the Covid-19 Waiver?

Failure to read the waiver is not an excuse or a defense to a contract. The law imposes a duty to read on everyone who signs a contract.

Are Covid-19 Waivers Valid?

In the absence of federal legislation regarding Covid-19 liability, it will be up to each individual state to determine how to address these liability waivers. Most states have regulations and cases that deal with assumption of risk and liability waivers but those laws may differ from state to state.

For instance, California will render any liability waiver unenforceable if the waiver was procedurally or substantively unconscionable. In California, a contract must be signed voluntarily with an understanding of the risks being waived and the terms of the waiver itself must be reasonable. Preferably, the business or organization should also orally identify the Covid-19 waiver and the waiver should be emphasized in a manner that it is easily distinguishable from the other legal terms on the pages. One possible procedural defect is if the contract is only in English and the signer is a non-English speaker, the contract would be unenforceable as to that individual.

A contract may be substantively unenforceable if it contains a term that no reasonable person would agree to. A guest to a gym may waive her right to sue while using gym equipment, but the gym may not require a guest to waive her right to sue if she is raped by an employee. In California, intentional acts and gross negligence cannot be excused by a waiver of liability.

The exact language of the waiver is also significant. Waivers have been deemed unenforceable if they do not identify a specific issue or if they are too broad. A waiver that seeks to waiver liability for Covid-19 would need to mention Covid-19 explicitly. Reliance on general terms such as “illness or injury” would probably not be sufficient.

More importantly, these waivers would only apply to people who sign them. As the disease is highly contagious with a long incubation period, family members who are infected by those exposed to the virus while in a gym or hair salon may have grounds to sue the business as well. For instance, a gym that requires basketball players to sign a waiver may be protected by the waiver if a player sues the gym. However, a player’s sibling or parent who is infected by the player would not be so restricted. Causation would be difficult to prove, but the waiver would not be a valid defense.

Do I Need a Lawyer for Assistance with a Covid-19 Waiver?

If you need assistance with drafting or negotiating a Covid-19 liability waiver, you may wish to contact a personal injury lawyer in your area. Your lawyer can help review the laws in your area, to ensure that your rights are accurately represented in the agreement.

In the event that you need to file a lawsuit related to a Covid-19 liability waiver, an attorney can represent you in court as well.

Jason Cheung

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