COVID-19 Waivers: The New Normal?

When you participate in an organized sporting event or adventure activity,  you will usually be asked to sign a waiver of liability. Waivers are commonplace in these situations, and it is often accepted, if not expected, that you will need to “sign away your life” to participate in such an activity. In our new COVID-19 world, waivers of liability may pop up in places we have never seen them before, from restaurants and bars to hair salons and barbers.

We are currently in Phase 2 of BC’s Restart Plan, and many businesses that closed during the initial COVID-19 outbreak have reopened, or are in the process of reopening. In order to operate, businesses must meet their legal obligation to provide a safe work environment for their employees and follow the Provincial Health Officer’s Health and Safety Guidelines. To meet these obligations, businesses are developing workplace policies and implementing measures such as physical distancing, capacity limits, plexiglass barriers, and face coverings. However, even a business that takes every possible precaution cannot guarantee that a COVID-19 outbreak will not occur in connection with its operations.

It remains to be seen whether businesses will be held liable for customers contracting COVID-19. For example, can a customer sue their barber for contracting COVID-19 while having their hair cut? In principle, if the customer proves that they contracted COVID-19 as a result of the barber’s failure to meet the standard of care, the barber could be held liable in negligence. Further, business owners can also be held liable for their employees’ negligence relating to COVID-19 prevention.

In order to best protect themselves, businesses whose operations previously posed little risk of harm to their customer may want to have their customers sign a waiver of liability.

For businesses considering a waiver of liability, here are a few points to consider:

• Signed waivers generally hold up in court. There is a misconception that waivers are not legally binding. While waivers will not always hold up in court, a well drafted waiver that is properly administered and signed will generally be enforced against the signing party.
• A waiver should be (relatively) easy to read and emphasize its key terms. Although waivers typically include a fair amount of legalese, a waiver is more likely to be enforced when it is written in plain language and draws attention to the key terms. This is why you often see a bolded and highlighted section stating:

PLEASE READ CAREFULLY BEFORE SIGINING! THIS IS A RELEASE OF LIABILITY AND WAIVER OF CERTAIN LEGAL RIGHTS INCLUDING THE RIGHT TO SUE OR CLAIM COMPENSATION.

• How you administer the waiver matters. Similarly to the point above, a waiver is more likely to hold up when the party administering the waiver explains its purpose to the signing party, and the signing party is given an opportunity to read it. It is important to train staff to do more than push the waiver across a counter and say “sign here”.
• Parents cannot consent to a waiver on behalf of a child. In many cases, a waiver will allow a parent to sign on behalf of their child. However, contracts made by, or on behalf of, minors are not enforceable against them. To get around this, many waivers have the parent indemnify (promise to compensate) the business for any claims brought against it by the minor. Whether such indemnities are enforceable is uncertain.

If your business is concerned about liability related to COVID-19, we would be happy to discuss the best way to protect your business.