Liability Waivers for COVID-19: Law, Policy, and Practice

As businesses reopen, the practice of asking customers to sign COVID-19 liability waivers is increasing throughout the United States. Although the courts have not yet decided the enforceability of COVID-19-related liability waivers, existing case law, as well as new executive and legislative actions, suggests that such waivers may offer some protection to businesses from liability. Nevertheless, we believe that the legal and ethical rationales underlying liability waivers are not applicable to a pandemic. We further argue that the challenging nature of and the substantial unknowns about the novel coronavirus make waivers contrary to public policy. Fears over floods of litigation appear thus far unfounded, and businesses should not be relieved from their obligation of taking reasonable safety precautions. Waivers are not a panacea to reopen businesses in an ongoing pandemic, and the ultimate protection against liability is to operate in a manner that minimizes the spread of the virus consistent with evidence-based guidelines.