By Kevin Eggleston and Mark Bernstein

Just imagine: You’re finally enjoying a weekend away. As you get ready to check in to the upscale hotel, the desk clerk, wonderfully engaging yet not versed in claims, slides the newest tool of the times over for you to sign. It’s a COVID-19 Liability Waiver, with legal jargon and warnings. In signing, you acknowledge the risk of catching the virus at the establishment and hereby release the hotel from any and all liability.

For hotel and restaurant managers (not to mention those running gyms, grocery stores, hair salons, etc.) who are wondering if requiring this sort of waiver is a good idea, our first question is: would you sign it?

Liability waivers are interesting legal instruments. You absolutely would be expected to require them if your venue hosted activities far riskier than shuffleboard or ping pong, like, let’s say, parasailing, hang-gliding, bungee jumping...even horseback riding. But COVID-19 liability waivers are a different matter. Not the least concern is the waiver’s signal to patrons that the hotel is inherently unsafe, leading guests to ask: “If you can’t protect me against the coronavirus during my stay, then why am I here?”  

A liability waiver may actually be redundant, given the number of states that have statutorily limited liability from COVID claims (or are thinking of doing so). If you still haven’t been dissuaded, here’s how to weigh the ramifications of liability waivers and guest safety in a pandemic environment:

  • Waivers can be tricky. For starters, waivers may or may not be enforceable. Those most likely to be enforceable must be narrowly tailored to the business, and clear and unambiguously stated. Also, questions remain as to how much weight they will carry in court. And any business not complying with health and safety guidelines – at the local, state or federal level – may be found liable regardless. If you do decide to use a waiver, your business attorney should draw up your COVID-19 liability waiver. Be aware of certain jurisdictional requirements of formatting and presentation, font style and size, some parts in bold and/or underlined and on a certain color of paper.
  • Think implications. A waiver won’t give you license to not follow required guidelines and protocols on health and safety. It may imply – to your guests and employees – that your establishment is slacking off on those guidelines
  • Set your guests’ expectations instead. An alternative to a COVID-19 liability waiver would be to prepare collateral pieces for each patron that describe your commitment to Center for Disease Control (CDC) health and safety guidelines and to ask that your guests abide by them as well. Spell out procedural and behavioral measures and your expectations for guest behaviors related to them. For example, having patience at guest elevators as you limit the number of passengers is not out of line. And, a no-exception enforcement of mask usage is not unusual. Putting such expectations in front of guests from the outset may be more effective against litigation than a waiver. 
  • ...and about your employees... Don’t waste your time asking your employees to sign COVID-19 liability waivers. Some businesses are doing that, too. But since they are already covered by Workers’ Compensation laws in every state, you can’t make them sign a totally unenforceable document. If your COVID-19 safety measures don’t adequately protect your employees, it may not only be Workers’ Compensation that comes into play – but Employers’ Liability, and even as far as a class action lawsuit. Further, in the event of legal action against your business over COVID-19 (or other health and safety issues, for that matter), the first thing your employees’ attorney will be asking is whether you have policy and procedure guidelines, and the training provided to them. Failure here can be a bigger problem than not having waivers.

The best defense is always to consider and follow what reasonable people would do, and follow and communicate your Best Practices to keep everyone as safe and healthy as possible.

HUB International’s team of brokers is available to help your hospitality organization understand and manage its risk and insurance concerns.

Get the latest information, guidance and resources on Coronavirus (COVID-19) to help you protect what matters most on our Coronavirus Resource Center