If you have a recreational activity, adventure, or sports-orientated business you probably already have a liability waiver that customers or participants sign before they engage in activities on your premises.

A waiver is a contract that participants enter into under consideration of being allowed to engage in the activity offered. It acts to have them voluntarily assume the risks of the activities, brought to their attention, whether inherent in the activity itself or arising from the negligence of staff. There is also a relinquishment of certain rights, including the ability to bring litigation proceedings or claim compensation in the event of injury.

Now that businesses and recreational activities are re-opening, consider these two important questions:

  • Is your insurance sufficient to cover you in the event of litigation arising from COVID-19 transmission on your premises, and
  • Does your current waiver address the risk of a COVID-19 transmission? (If you do not have a waiver already, consider if your business might benefit from one.)

The first question is probably best answered by your insurance broker, after a review of your policy and exclusions. Your insurer may also require updates to your waiver to reduce its own coverage risks.

The second question is more difficult to answer. Standard form waiver contracts act as an exclusion of liability, which is very strictly construed by the courts, with any ambiguity being resolved against the party or business seeking to rely upon it. As such, the chosen wording can be very important and must clearly state, without ambiguity, an intention to exclude rights in the particular circumstance that in actuality occurs. Generally, the scope of a waiver should be broad enough to cover liability in a number of circumstances, but must also clearly apply to the specific circumstances in which it is relied upon.

It is too early to have any case law specific to the enforceability of commonly used waiver language as it might relate to COVID-19. We also do not know how the courts will treat business liability for COVID-19 transmission. However, based on the development of the law to strictly construe language in liability waivers, for the best protection they should specifically reference inherent risks relating to infectious diseases (including now COVID-19). This is regardless of what measures your business is already undertaking to reduce the risks of transmission.

Although broad, all-encompassing exclusions are good, and are often upheld by the court (if clearly applicable to a given incident), specific provisions for known risks are always best. Government-endorsed phone apps, currently being discussed as a tool to trace COVID-19 contact, might in the future make it easier for customers to pinpoint where they contracted an infectious disease. This could affect future business risk if it has not otherwise been addressed directly with a customer or participant.

As you re-open for business take a moment to consider ways you can protect your company from possible liability.

Originally published 09 July, 2020

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