Last Updated: No update. New article.
The short answer is … it’s doubtful a waiver or release will protect your business from liability, unless you’re creating/following guidelines, enforcing guidelines, documenting incidents, and maintaining an incident log to prove you were following and enforcing guidelines.
The longer answer is …
We’re getting this question a lot, and it’s a lot harder to answer than you might think (from a legal perspective).
It’s difficult because this is new territory legally. If you asked us in February 2020 whether you have any liability or legal risk for someone catching the flu or other transmissible disease while doing business with you, our answer would be “no” in most circumstances — except in circumstances that were intentional and foreseeable.
What measures your business should take to protect your employees/customers is greatly impacted by the type of business you have, and what state it’s located in. Some businesses are essential, some are not, and many others sit in the middle somewhere. Hospitals and medical offices have very different requirements and procedures than spas and salons. And, in some cases the government has announced specific steps that are required for particular types of entities.
Determining how to react as a responsible business is also challenging, because the legal landscape is changing very quickly. This creates a chilling effect for lawyers to put any sort of sound legal advice on the Internet, because we may quickly discover that this legal advice was wrong or misguided.
While we believe being attentive to this information is helpful, none of the above instructs you, the business owner, about what actions to take right now.
You Have a Duty to Be Aware of the Issues and Legal Requirements Around COVID-19
So, given the above, here’s what we’re recommending you do as a business owner right now. Please check this page frequently. We’ll post changes as circumstances, the law or government/industry recommendations change and when we do, we’ll update the “Last Updated” at the top of this article.
- Review and Follow CDC Guidelines for Businesses. The CDC is the de facto authority on COVID-19 in the US, and your business needs to follow their guidelines in effect at the time (start here).
- Review and Follow OSHA’s Guidelines for Businesses. OSHA has published a lot of information, and you need to review it as it pertains to your business (start here). OSHA has also published a PDF providing Guidance on Preparing Workplaces for COVID-19, which you should read and use to guide your actions.
- Review Your State’s Latest Public Orders. If you’re located in New Mexico, start here. For other states, I’ve found searching “latest governor orders regarding covid-19 my_state” achieves the results I seek.
How Do You Apply CDC, OSHA and Governor Orders and Guidance to Your Business?
Simply put, you are required to follow the orders of your state’s Governor and you need to incorporate the guidance and recommendations of the CDC and OSHA.
If you flout your state’s Governor’s orders, you risk arrest and potential criminal penalties. If you flout, ignore or fail to follow the CDC and/or OSHA guidelines and recommendations, you open your business and yourself to legal liability and exposure of your employees and customers.
Therefore, this is about compliance and following guidelines. The best defense to any complaint or cause of action against your business is that you are able to demonstrate that you did everything you were supposed to do.
- Create/Follow Guidelines
- Enforce Guidelines
- Document Incidents and Maintain an Incident Log
This means you’re up-to-speed on the latest guidelines as I discussed above, and that you create clear prompts / guidelines within your business. This could mean instructional posters, stickers on the floor to maintain social distance between employees/customers, or even ropes or other pedestrian control devices to better control where people may walk, or how many people can be in any given area.
Find an industry group that can provide detailed guidelines and recommendations as applied to your specific industry. If you have no such group, or your group does not have such guidelines, then consider hiring an attorney or law firm to provide some guidance.
You cannot have any exceptions, and to avoid any claims of discrimination, you must treat everyone equally and fairly — especially employees.
If your guidelines say you must take the temperature of employees/customers (which, by the way, given the asymptomatic nature of COVID-19 transmission, means your guidelines may be more political than practical, but follow them anyway), then you should take everyone’s temperature and enforce any consequences evenly. Do not rely on personal pleas or statements they just have a fever unrelated to anything communicable.
If your guidelines require everyone to stand at least 6 feet apart, make sure you enforce that religiously and be prepared to escort troublemakers off the premises immediately.
Documenting Incidents and Maintaining an Incident Log
This sounds a bit like “Big Brother,” but it’s unfortunately necessary.
First, make sure this log is PRIVATE AND CONFIDENTIAL. It must be treated as a confidential trade secret of the business, to protect everyone’s privacy. Moreover, because this log is likely to contain some limited medical information, you should be particularly diligent about privacy.
Second, it must become a “business record” for your company, and that means entering date, time, names involved, what happened and what was done to enforce the guidelines for every incident. This information needs to be entered into the log AT THE TIME of the incident. If you told an employee they must go back home for two (2) weeks, write that incident in the log, and when they return to work after the two (2) weeks, make sure to write the return to work as an incident, too. Did you update your guidelines due to new CDC recommendations? Put that in your incident log at the time you make the change.
Third, consider some sort of documentation for incidents to provide to your employee. If this means sending an employee home, document the incident and give the employee a copy of the document. It should include a statement regarding the guidelines being enforced, and when (and under what circumstances) the employee can return to work.
So, Is a Waiver or General Release Necessary?
As you’ve read above, what matters is creating/following guidelines, enforcing guidelines, documenting incidents, and maintaining a log of incidents to prove you were following and enforcing guidelines.
If you don’t do everything you’re supposed to do, is that “negligence” or “gross negligence?” If a court decides your action/inaction constitutes “gross negligence,” a legal waiver or general release will almost certainly fail to insulate your business from a lawsuit.
Our current thinking is that a waiver or general release is unwieldy and unlikely to protect your business UNLESS you are following all our suggestions above. Then, possibly maybe a waiver or general release may be enforceable, but even then, only in limited circumstances.