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COVID-19 Waiver Considerations

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Paul R. Bedard, EsquirePaul R. Bedard, Esquire

As health clubs continue to operate with a focus on minimizing the COVID-19 health risks posed to members, guests and employees, many clubs have implemented COVID-19 waivers --or are otherwise deliberating the employment of these waivers-- as part of their overall COVID-19 response. However, care must be taken to evaluate the enforceability of these waivers while weighing any negative ramifications associated with their use. More importantly, clubs must first focus on the policies and procedures that must be implemented to keep people safe, which will likely also result in the ability to defeat a negligence claim based on COVID-19 exposure.

In addition to the health club's underlying liability waiver, a COVID-19 waiver can play an effective role within the club's risk management strategy. However, some unique considerations must be evaluated, including but not limited to the health club's actual COVID-19 response, the governing state law and whether a COVID-19 waiver will tarnish the health club's brand.

This article is not intended as legal advice. The laws in this regard are many and varied. This is a new and murky area of law that is just beginning to develop. Furthermore, unique facts and circumstances in each case prohibit blanket recommendations. Therefore, please consider the following information as an educational guide, and please consult an attorney for specific direction.

Policies, Procedures and Related Efforts Forming the Club's COVID-19 Response

The best legal defense begins with a strong offense long before any claim arises. Health clubs should continue to operate with a heightened duty of care throughout this public health crisis. Safety procedures and cleaning protocols consistent with guidance from the Centers for Disease Control and Prevention and local health authorities must be consistently adhered to. These practices must be documented and archived for at least the length of the statute of limitations within the governing jurisdiction. Employee handbooks, training manuals and training procedures must be revised and updated fluidly as this crisis evolves. Regardless of whether a COVID-19 waiver is signed, a claim of negligence due to COVID-19 exposure will likely prove difficult to prevail upon in the face of a defense that can point to consistent safety and cleaning protocols that meet or exceed all legal requirements.

Understanding Governing Law

State law governs the enforceability of liability waivers. These State laws vary widely. Liability waivers effectively hold no water in some states, whereas other states take these waivers very seriously. In addition to this varying enforceability, the devil is often in the details. Some states require specific statutory language that must be inserted verbatim within the waiver to avoid having what would otherwise be an enforceable waiver fall flat. Therefore, understanding the applicable state law is critical.

Although a liability waiver will generally not protect against claims resulting from intentional conduct or gross negligence, the waiver should expressly bar claims due to negligence, identify the assumption of the risk related specifically to COVID-19 and specifically waive claims for harm due to COVID-19. The waiver should be posted conspicuously and contain clear and readily understandable language. A clear and conspicuous waiver is more likely to be viewed by a court as a waiver that was read and understood by the person who signed it, thereby increasing the odds of enforceability.

Consider What Impact, If Any, the Waiver Will Have on the Health Club's Brand

Given that the best defense against a negligence claim alleging harm caused by exposure to COVID-19 is a strong COVID-19 response, coupled with the varying enforceability of liability waivers, it's worth assessing to what extent a COVID-19 waiver will minimize your specific club's legal exposure versus create any harm to your club's brand. There are many variables to assess here including the level of enforceability within the jurisdiction, the club's confidence in their COVID-19 response and to whom the waiver is being presented.

An argument can be made that a club has minimal risk to COVID-19 claims when it can be shown that safety and cleaning protocols meeting or exceeding all local and federal guidelines have been diligently followed. Additionally, the causation component that must be met within any successful claim of negligence may prove elusive given the likely difficulty of pinpointing exactly when and where a person became infected with COVID-19. Therefore, it is worth weighing whether more harm than good will result from a COVID-19 waiver after evaluating the strength of the club's overall COVID-19 response versus whether such a waiver is likely to be upheld within that environment in the first place. Although, it can also be argued that, at a minimum, a COVID-19 waiver may help to fend off frivolous lawsuits. Either way, the legal landscape in this regard is largely untested at this point.

There are even greater concerns to evaluate in terms of the value of a waiver when considering having employees sign these waivers. Waivers for employees are enforceable in very few scenarios. Courts typically find unequal bargaining power when employers present waivers to employees, and waivers cannot supersede or eliminate rights under workers' compensation statutes nor can they override Occupational Safety and Health Administration's legal requirements. Furthermore, this limited applicability may be coupled with reduced morale when employees are presented with a mandatory waiver of their rights. Care must be taken if this is a path of consideration.

The bottom line is that health club owners and operators must understand all variables at play when considering whether to implement a COVID-19 waiver. If it is decided that a COVID-19 waiver will play a part in the club's overall risk management strategy, the same provisions that constitute any good liability waiver, such as a severability clause and declaration of governing law and venue, should be included. However, the club's COVID-19 waiver should be utilized in conjunction with a consistently outstanding COVID-19 response effort and certainly not in place of this heightened duty of care.

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