COVID-19 Liability Waivers - The Definitive Guide (and downloads)
- What is a COVID waiver?
- Why do waivers exist?
- If I take the right precautions, do I still need a waiver?
- How will a waiver protect me?
- Do waivers fully protect me?
- What are the main parts of a gym/fitness centre waiver?
- Potential mistakes
- Collecting waivers
- Example waivers/downloads
A COVID Waiver is a legal agreement that absolves a business of responsibility for COVID-19 related issues - most commonly the risk of a customer contracting COVID-19 in or around the business premises. Generally the person signing it also confirms that they are not at high risk of having COVID themselves (eg having a household member with COVID-19)
(note that we are not lawyers and this article should not be taken as legal advice)
Though there is a lot you can do to reduce the risk of customers catching COVID-19 on your premises, no degree of safety precautions can fully eliminate the risk, especially given the amount that's still unknown about the virus. There is therefore always the associated risk that a customer will blame the owner of the premises where they think they caught it. As with any legal case, if a customer does sue it could be very expensive to defend, providing a strong incentive to do anything possible to avoid lawsuits in the first place.
However note that certain US States have legislated liability protection in certain circumstances for COVID liability, so this would reduce the risk if it applies to a given business.
By signing the waiver, the customer is providing evidence in writing that they acknowledge that the risk of catching COVID-19 on the premises, which can be used in court were they to sue the business, and therefore reduces the chances of the customer being awarded damages. In addition the best waivers leave little room for interpretation and help dismiss claims before the progression of a lawsuit and associated discovery or trial costs.
The main protection, however, comes from the fact that by requiring all their customers to state that they are not at high risk from COVID, the business is able to provide some proof that they have been attempting to ensure that these customers don't enter their premises and infect other customers.
No, waivers help mitigate the risk by giving evidence that can be held up in court, however the degree of protection depends on how well the waiver is written, and the particular requirements of the courts in the waiver jurisdiction. For example waivers have much more validity in New York State than in Virgina.
And if the company doesn't keep to local guidelines (eg from the state), or there is a case of gross negligence (the lack of even taking basic precautions - for example allowing an employee in who you know has COVID and is potentially infectious) then waivers generally have very little power.
The level of protection will be increased by writing the waiver well - see our guide on how to write an effective liability waiver.
Attestment of not being at high risk of COVID
Generally this covers the situation where the person signing the waiver has COVID or COVID-symptoms themselves, or they've been exposed to someone with COVID or COVID symptoms. It can also cover the case where the person signing the form has been to a country or region that is a COVID 'hot spot'.
This is the key clause that states that the person signing the waiver is aware of the risk of catching COVID-19 on or around the business premises and that the business isn't liable for the customer getting exposed to COVID-19.
A COVID waiver will often include a section stating the extra procedures that the business is taking to reduce COVID transmission risk, for example extra cleaning procedures.
The waiver needs to state what is being given in exchange for waiving the business liability - as otherwise it would be a one-sided contract which would make it invalid. This can be as simple as access to the premises, or could be participation in an activity.
There of course needs to be space for the person signing the waiver to identify themselves, and specify when they signed the waiver.
Make sure that the waiver makes is as clear as possible to the person signing it. Thought it's a legal document and it may be tempted to fill it with 'legal-ese', as far as courts are concerned, the clearer and more unambiguous the better.
Make sure you pair the waiver with following all COVID advice both from the government and within your industry (as one of many examples the American College of Sports Medicine has published a set of of recommendations of reopning medical fitness facilities).
Ideally the COVID waiver should be kept separate from other forms and even other waivers, this makes it as clear as possible what the customer is signing.
You can have your customers sign COVID waivers on paper when entering your premises, however this requires keeping track of all the waivers in the unfortunate event you have to find one later.
speedyWaiver online waivers is an alternative - it provides a lot of flexibility in how the waivers are collected, they can be:
- signed on-site by the customer on their phone, either by entering a URL or by scanning a QR code
- signed using a kiosk - a tablet available to your customers that has all the apps locked out except speedyWaiver
- signed at home using an e-mail link
After the waiver has been signed it's kept in a digital vault where it's guaranteed to be available in the future if required.
- American Bar Association - How Effective are Liability Waivers in the Age of Coronavirus
- BMS Canada Risk Services
- Reed Smith COVID-19 waivers and insurance considerations for property owners and operators
- Liability Waivers and Workers’ Compensation During Business Reopening
- National Federation of Professional Trainers
- Risk Management Magazine
- Waivers Not Waving Goodbye to COVID-19 Lawsuits
- Bryan Cave Leighton Paisner Legal Guide
These are some example COVID waivers: