As businesses reopen across the US after coronavirus shutdowns, many
are requiring customers and workers to sign forms saying they won’t sue
if they catch COVID-19.
Businesses fear they could be the target of litigation even if they
adhere to safety precautions from the Centers for Disease Control and
Prevention and state health officials. But workers’ rights groups say
the forms force employees to sign away their rights should they get
sick.
The liability waivers, similar to what President Trump’s campaign is requiring for people to attend a
Saturday rally in Tulsa, Oklahoma, would protect businesses in states that don’t have liability limits or immunity from coronavirus-related lawsuits.
So far, at least five states — Utah, North Carolina, Oklahoma,
Arkansas and Alabama — have such limits through legislation or executive
orders, and others are considering them. Business groups such as the US
Chamber of Commerce are lobbying for national liability protections.
The novel coronavirus has sickened more than 2 million people in the
US and killed more than 115,000, according to Johns Hopkins University.
At Salon Medusa in West Hartford, Connecticut, hairstylist Lena
Whelan says they’re using only two of six styling stations since
reopening June 1. Customers have to wait outside and wear masks, and all
stations and tools are disinfected between clients.
Despite all those safety measures, customers must sign a form saying
they won’t sue if they become infected with the novel coronavirus. The
form, which also asks patrons if they or any family members have virus
symptoms, gives the salon extra legal protection, Whelan said.
Critics argue that liability waivers open the door for corporations
to skirt protocols like erecting Plexiglas barriers, providing face
masks and other protective equipment, and keeping people the proper
distance apart without suffering any repercussions.
The waivers are particularly onerous for workers who may feel
compelled to sign them in order to keep their jobs, unlike customers who
at least have a choice to walk away.
“It’s a terrible choice for an employee,” said Hugh Baran, an
attorney with the National Employment Law Project, a worker advocacy
group. “Do you sign this and potentially give up your legal recourse or
do you refuse and feel like you are going to lose your job?”
Worse yet, in many states, if workers refuse to sign the waivers and
return to work, they risk losing unemployment benefits, Baran said.
Also, immunity legislation and liability waivers disproportionately
affect black and Latino workers, many of whom have jobs that can’t be
done remotely, he said.
Lawyers say many business clients are asking about the waivers.
Whether they can be enforced varies by state and is open to debate.
Owners are wise to take a “better safe than sorry” approach, said John
Wolohan, a sports law professor at Syracuse University.
“It’s hard for me to believe people don’t understand the danger of
going out in public and interacting. But when somebody gets sick, I’m
sure they’re going to claim the business didn’t protect them the way
they should have. By having a waiver, the business will better withstand
the lawsuit,” Wolohan said.
In 45 states and the District of Columbia, courts will generally
enforce voluntary waivers, according to “Law for Recreation and Sport
Managers,” a book Wolohan co-wrote with Doyice Cotten.
Connecticut, Hawaii, Louisiana, Virginia and Wisconsin offer consumers the best chance to challenge liability waivers.
But Baran says a lot depends on how state contract laws have been
interpreted by the courts. Many states, he said, have laws on the books
saying that businesses have a general duty to maintain healthy and safe
working conditions. In some instances, however, courts have determined
that employees can sign away those rights, he said.
“This is a new situation,” Baran said of the liability forms related
to the coronavirus. “It’s hard to know how state courts would view such
waivers.”
Data on just how many businesses require liability waivers of employees or customers is difficult to find.
Lawyers say the forms are showing up at
small businesses such as hair salons and gyms where it’s hard to maintain social distancing.
But it’s also showing up at the New York Stock Exchange, where
Jonathan Corpina, senior managing partner with Meridian Equity Partners,
said Monday he was required to sign a waiver in order to enter the
trading floor.
Cheryl Falvey, a partner at the Crowell and Moring law firm in
Washington, DC, and a former top lawyer at the federal Consumer Product
Safety Commission, said she does not think most employers would try to
get their workforce to sign them.
Falvey also noted there are circumstances that waivers would not
cover, including if someone who signs a waiver gets infected and then
spreads the disease to family members or neighbors.
“I don’t think these waivers would cover that,” Falvey said. The wife
of someone infected might argue, “I didn’t sign that waiver. You let
him in and you didn’t protect him,” she said.
Harold Kim, president of the US Chamber of Commerce Institute for
Legal Reform, said federal legislation would be better for businesses
rather than a patchwork of conflicting state laws.
The legislation sought by the chamber would be temporary and grant
protections only if businesses followed CDC and state guidelines on the
virus, he said. It would not give businesses immunity if they were
grossly negligent.
“You don’t get those protections if you don’t follow that guidance,” Kim said.
Employees who get sick on the job might not be able to sue their
employers, but would have access to workers’ compensation to cover lost
wages and medical care, legal experts said. Proposed federal legislation
wouldn’t affect workers’ compensation programs, which most states have,
Kim said.
Through Monday, there were 2,741 lawsuits filed in the US over
COVID-19 infections, according to a complaint tracker maintained by the
Hunton Andrews Kurth law firm.
Many of the cases were over government shutdown orders and which
businesses were deemed essential. Only seven came from consumers and 49
were filed by employees over exposure to the virus or other related
injuries. Kim said federal legislation would prevent a big surge in
litigation.
https://nypost.com/2020/06/16/customers-asked-to-waive-right-to-sue-in-case-of-coronavirus-infections/
