People are being asked to sign COVID-19 liability waivers at spas and nail salons — but legal experts say they may not have much value
- Spas and salons across the country have started asking customers to sign COVID-19 liability waivers — forms designed to protect companies from being held liable if a consumer contracts the virus while on the premises — before receiving services.
- However, legal experts say these documents don't hold much weight in a court of law and aren't enforceable. Still, given the difficulty of proving causation and tracing the source of the virus, they said they don't anticipate a rash of lawsuits stemming from consumers.
- "If you're a business and you think [waivers are] a magic pill, that's not true," New York liability attorney Richard C. Bell told Business Insider. "And if you're a consumer and you got COVID after having visited a place and you think, 'Oh, I must have a lawsuit,' that's not true either. The law is always gray, and you're going to have to evaluate as such."
Americans jonesing for a spa day after months stuck at home are finding that they may not only be required to wear masks and adhere to strict safety protocols, but they also might be asked to sign a liability waiver.
Consumers across the country are taking to social media to share these forms, which typically require that they acknowledge the risk of being exposed to or infected by COVID-19 in advance of receiving services. In non-pandemic times, these forms are typically used for high-risk activities like bungee jumping, skydiving, and skiing, and though the content in these documents varies depending on the service, they are designed to protect the company from being held liable in the case of injury, illness, or death.However, despite the proliferation of COVID liability waivers, legal experts say they're not enforceable and don't hold much weight in court. We talked to two experts to get a better understanding of if businesses should be using them, and if consumers and employees should be signing them. Advertisement
Waivers are 'not a magic pill' for businessesAccording to New York liability attorney Richard C. Bell, until a waiver is upheld by the law, it is "not necessarily a legally binding agreement."
While this means that customers can still pursue lawsuits if they contract COVID despite having signed a waiver, bringing it to court will be easier said than done. Bell said proving causation and tracing COVID directly to a storefront is particularly difficult, unless an outbreak occurs in a contained environment like a cruise ship and nursing home."There's a lot to climb on this mountain to make these cases worthwhile," he said. "If you're a business and you think this is a magic pill, that's not true. And if you're a consumer and you got COVID after having visited a place and you think, 'Oh, I must have a lawsuit,' that's not true either. The law is always gray, and you're going to have to evaluate as such."
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Bell said liability waivers are designed to only protect against negligence — for example, if an employee fails to enforce a six-foot rule during a short time period, leading to the spread of the virus — but not gross negligence, or "a complete disregard for health and safety" such as refusing to wear masks, he said."You have all the powers of the consumer, you can walk away," he said. "If you don't want to sign one of these, you have that choice as a consumer. Especially if you're in a big city, there are a lot of other options besides that one place you're going to."
Liability forms as 'red flags'Bell said that customers who are presented with a liability waiver should proceed with caution, as the forms may act as a "red flag" that a business does not have proper infrastructure and sanitation in place and could be using the paperwork as a buffer.Advertisement
"In the case of COVID, the high risk is the pandemic itself, but we all know there are reasonable measures and basic standards we should be meeting," he said. "We know about masks. We know about social distancing. We know about disinfecting. We know about washing hands. So I would say, to a provider, what of these things are you not doing? What is the problem here?"
And it's not just consumers who are being confronted with waivers, so too are employees, who should be just as cautious when signing them, according to Aaron Goldstein, labor and employment partner at the international law firm Dorsey & Whitne."Waiver agreements are terrible PR for companies," he said. "Companies should be showing how they are keeping their workers safe, not how they are trying to avoid liability if their workers get sick."Advertisement
Goldstein added that such forms are "generally unenforceable," and that if a worker does get ill on the job, the form isn't a binding document that prohibits them from receiving workers compensation.
"Waiver agreements between employers and employees are also generally unenforceable except under very specific circumstances," he said. "Employees generally cannot waive workers compensation, which is the primary vehicle for addressing workplace injuries, such as a claim that an employee contracted a disease because of work."Ultimately, the decision to sign a waiver is in the hands of both the individual consumer and employee. Both Bell and Goldstein said they should feel empowered to do as they feel comfortable, and in the case of the customer, they can ask to do an inspection of the facility and view the perimeter before proceeding. Advertisement
"Do an inspection, feel comfortable with where you're going into," he said. "Look around, see if there's signs posted and there's tape on the floor marking six feet. Look for dividers if you're at a nail salon so that you're not close to the next customer.
He continued: "You really want to see that things are being conducted in adherence to the 'new normal.'"
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