COVID-19 Waivers: The Benefits And The Pitfalls, (Thomson Reuters Westlad)

• Published date: 27 July 2020
• Subject Matter: Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Personal Injury, Professional Negligence, Employment and Workforce Wellbeing, Insurance Claims, Litigation, Contracts and Force Majeure
• Law Firm: Jones Day
• Author: Ms Tiffany Lipscomb-Jackson, Jeffrey J. Jones, Jonathan M. Linas, Martin L. Schmelkin and James S. Urban

When properly employed, liability waivers ' contractual provisions by which one party agrees to relinquish the right to recover for certain injuries ' can be an effective means of minimizing the risks arising from the transmission of COVID-19 in connection with company activities.

While the enforceability of such waivers is governed by state law (and therefore varies), generally speaking, COVID-19 waivers are more likely to be enforced if they are conspicuous, clearly identify the claims being waived, and contain any language required by the applicable state.

Although waivers may not be enforceable against employees or others subject to specific protections, they may effectively protect against claims by customers, vendors, and other constituents, especially when joined with covenants not to sue, indemnification provisions, severability provisions, and policies and procedures designed to prevent the transmission of COVID-19.

Put simply, COVID-19 waivers are a tool that companies should consider using as part of their response to the pandemic, but one that needs to be undertaken carefully, thoughtfully, and with precision.

Companies considering COVID-19 waivers should be mindful of the associated business risks; while COVID-19 waivers are becoming more common, they have the potential to harm a business's relationships and image, especially in the consumer context.

Put simply, COVID-19 waivers are a tool that companies should consider using as part of their response to the pandemic, but one that needs to be undertaken carefully, thoughtfully, and with precision.

Many businesses are resuming operations as governments lift the lockdown measures imposed in response to the coronavirus (COVID-19) pandemic.

These businesses are facing renewed risks of liability arising from the transmission of COVID-19 in connection with company activities. Businesses of all sizes should be mindful of this risk and implement strategies to minimize exposure.

In addition to reviewing insurance coverage1 and, to the extent reasonable, implementing safety procedures consistent with guidance from the Centers for Disease Control and Prevention and local health authorities,2 liability waivers ' contractual provisions by which one party expressly agrees to relinquish the right to recover for certain injuries ' provide a potentially cost-effective means of minimizing the risk of liability from exposure to and transmission of COVID-19.

Such waivers can be joined with covenants not to sue and indemnification provisions to provide further protection from claimants who improperly pursue validly released claims.

Businesses may be able to protect against COVID-19-related liabilities by executing waivers through which customers, vendors, or other non-employee constituents prospectively relinquish their right to recover for COVID-19-related injuries.

Such waivers can be joined with covenants not to sue and indemnification provisions to provide further protection from claimants who improperly pursue validly...