To Waive or Not to Waive? Employer Liability During the COVID-19 Crisis

Photo by Anshu A on Unsplash

Sam Berten, Blog Editor, University of Cincinnati Law Review

I. Introduction

COVID-19 has affected nearly every aspect of our daily lives. The United States has reported over 4.5 million cases, with just over 153,000 deaths.[1] Because of the impact of the virus, some businesses now require customers and workers to sign liability waivers.[2] Liability waivers typically release a party from any damage that may result from participating in an activity or performing under a contract.[3]

However, these liability waivers may not exempt employers or businesses from legal action. Liability waivers are not a panacea for every kind of claim that might arise.  Both employee waivers and customer waivers could present potential issues for employers. Additionally, some employees may be wary of signing a waiver for fear of losing their legal recourse.[4] This article will discuss the applicability and enforceability of liability waivers, and how courts may choose to interpret liability waivers in light of the COVID-19 crisis.

II. Background

Liability waivers may curb liability for common negligence suits, but they will not block claims of intentional or wanton misconduct, or gross negligence.[5] Further, the waiver only releases the named party from liability as explicitly stated in the waiver itself.[6] These waivers must be clear and understandable, and should be tailored to the business at hand.[7] Additionally, some states require the customer or employee to sign the waiver, so it can’t simply be posted at an entrance.[8]

Liability waivers are also a contract between two designated parties, including a business and a customer, not just an employee. If, by chance, the customer contracts COVID-19 and goes home and infects someone outside of the waiver’s terms, such as a family member or a neighbor, that family member or neighbor may be able to bring an action against the nail salon.[9] However, the difficulty with waivers is “contact tracing and proving fault.”[10]

Also, if an employer asks an employee to sign a liability waiver, that waiver will not protect the employer from Occupational Safety and Health Administration (“OSHA”) complaints if a workplace is dangerous.[11] But the President signed an executive order directing federal agencies (such as OSHA) to “make exceptions for employers who attempt in good-faith to follow agency regulations during the COVID-19 pandemic.”[12]

Thirteen states to date[13] Three states do not enforce liability waivers are unenforceable.[14] Courts in New York, for example, have stated that liability waivers are only enforceable if: “(1) it does not violate public interest, (ii) the intention of the parties is expressed in unmistakable language, and (iii) the provisions are clear and coherent.”[15]

However, “it’s hard to know how state courts would view such [COVID-19] waivers.”[16]

“[B]ecause no court has considered whether a liability waiver is enforceable in the context of a pandemic, or whether such a waiver would be void as against public policy, it is unclear whether a COVID-19 waiver relieving an entity of liability for exposure on its premises would be enforceable … From a public policy perspective, it is possible that liability waivers in this context may be deemed enforceable so that these non-essential businesses can operate with some level of protection.”[17]

John Abegg, executive vice president of the U.S. Chamber Institute for Legal Reform, has stated that a new federal law is being proposed to “create a safe harbor for businesses and nonprofit organizations, including colleges and universities, that follow federal or state guidelines for COVID-19.”[18] Harold Kim, president of the U.S. Chamber Institute for Legal Reform, clarified this, explaining that businesses will not be granted immunity if they were grossly negligent.[19]

As of June 17, 2020, there were 2,741 lawsuits filed in the U.S. because of COVID-19.[20] The majority of the cases were complaints over government shutdown orders and essential business designations.[21] Seven came from consumers and 49 were filed by employees because of exposure to COVID-19.[22]

III. Analysis

Courts will be forced to grapple with the issue of COVID-19 liability when the pandemic quiets and the courts resume. This is largely uncharted territory. Liability waivers, in general, are enforceable in most states. But there are many unanswered questions that judges at every level of the judiciary will have to sort through.

For instance, if an employer has an employee sign a COVID-19 liability waiver, and the employee contracts COVID-19 from their workplace, will the employer be liable? The information in the foregoing section seems to indicate that if the employer was acting in good faith and following proper guidelines, they wouldn’t be liable, especially in states that have expressly limited liability due to COVID-19 related causes. Courts may also find that employee liability waivers are unenforceable because of the unequal bargaining power between the parties. Employees who are forced to return to work by their employer and must choose between signing a waiver or losing their job are on a different playing field than their employer, which may result in an unenforceable waiver. If this is the case, employees may be able to raise claims related to COVID-19 against their employers but depending on the good faith efforts of their employers, the employer may have safe harbor.

Customers’ waivers may be enforceable since customers could simply choose to shop elsewhere if they didn’t want to sign a waiver, but if the business is not following proper guidelines or is acting with gross negligence, the business could still be liable.

IV. Conclusion

This is a tough time for businesses, customers, employees, employers, local governments, state governments, the federal government, and all of America. COVID-19 has affected every industry and nearly every aspect of our lives. Businesses are floundering and struggling to survive. They want to reopen, but the impending threat of a lawsuit if someone contracts COVID-19 at their business is massive.

Liability waivers may be a helpful solution in some cases, especially as a way of recording that the business was trying its best to adhere to the guidelines and to act in good faith. However, since modern courts haven’t discussed the issue of enforceability of liability waivers during a pandemic, it is unclear whether courts will adhere to a waiver in the event of a lawsuit. Additionally, if a customer or employee’s family member or close relation contracts COVID-19, that family member or close relation could likely raise a claim against the business or employer. Thus, COVID-19 still presents a massive liability risk, even with a waiver in place. Hopefully, state governments and/or the federal government will provide guidance for the judiciary to delineate good faith actions from negligent actions during this pandemic.


[1] Coronavirus in the U.S.: Latest Map and Case Count, The New York Times (July 31, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html.

[2] Tom Krisher & Mark Sherman, Businesses want customers and workers to give up their right to sue over COVID-19. Can they do that?, The Chicago Tribune (June 17, 2020), https://www.chicagotribune.com/business/ct-biz-coronavirus-liability-waivers-20200616-pk2mcrbxyjgzxctqy63toz54hu-story.html

[3] Waiver and Release from Liability Law and Legal Definition, USLegal.com [not dated], https://definitions.uslegal.com/w/waiver-and-release-from-liability/.

[4] Krisher & Sherman, supra note 2.

[5] Laura Lorek, How Effective are Liability Waivers in the Age of the Novel Coronavirus?, ABA Journal (July 2, 2020), https://www.abajournal.com/web/article/understanding-liability-waivers-in-the-age-of-covid-19.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Benjamin Ross & Samantha Saltzman, Can Employers use COVID-19 Waivers to Limit Liability?, Fisher Phillips (May 26, 2020), https://www.fisherphillips.com/resources-alerts-can-employers-use-covid-19-waivers-to.

[12] Id.

[13] If the employer is acting in good faith and accordance with governmental guidance; Jim Paretti & Michael J. Lotito, States Enact Laws Limiting COVID-19 Liability, Littler Mendelson (July 1, 2020), https://www.littler.com/publication-press/publication/states-enact-laws-limiting-covid-19-liability; Lorek, supra note 5 (Alaska, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, New Jersey, New York, North Carolina, Oklahoma, Utah, Wisconsin, and Wyoming).

[14] Lorek, supra note 5; Briana Clark, Katie Jacobs, Kimberly O’Donnell, Yi Zhou, Enforceability of Liability Waivers to Protect Against COVID-19 Claims, JD Supra (June 5, 2020), https://www.jdsupra.com/legalnews/enforceability-of-liability-waivers-to-39970/ (Virginia, Louisiana, and Montana).

[15] Clark, Jacobs & O’Donnell, supra note 14; See, e.g., Gross v. Sweet, 400 N.E. 2d 306, 309 (N.Y. 1979).

[16] Krisher & Sherman, supra note 2.

[17] Clark, Jacobs & O’Donnell, supra note 14.

[18] Lorek, supra note 5.

[19] Krisher & Sherman, supra note 2.

[20] Id.

[21] Id.

[22] Id.