When properly employed, liability waivers—contractual provisions by which one party agrees to relinquish the right to recover for certain injuries—can be an effective means of minimizing the risks arising from the transmission of COVID-19 in connection with company activities. While the enforceability of such waivers is governed by state law (and therefore varies), generally speaking, COVID-19 waivers are more likely to be enforced if they are conspicuous, clearly identify the claims being waived, and contain any language required by the applicable state.
Although waivers may not be enforceable against employees or others subject to specific protections, they may effectively protect against claims by customers, vendors, and other constituents, especially when joined with covenants not to sue, indemnification provisions, severability provisions, and policies and procedures designed to prevent the transmission of COVID-19. Companies considering COVID-19 waivers should be mindful of the associated business risks; while COVID-19 waivers are becoming more common, they have the potential to harm a business's relationships and image, especially in the consumer context. Put simply, COVID-19 waivers are a tool that companies should consider using as part of their response to the pandemic, but one that needs to be undertaken carefully, thoughtfully, and with precision.
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