Businesses often ask customers to sign a waiver before renting a Sea-Doo, zip-lining, tubing, or perhaps even so your child can bounce on a trampoline or in a bounce house. But can a business use a waiver to avoid liability if a customer contracts COVID-19 after visiting the business? Like the novel coronavirus, it is a novel legal issue.
Under Florida law, these kind of waivers are called exculpatory agreements and are frowned upon. However, courts will enforce a waiver, even relieving a business owner from its own negligence provided the agreement is clear and understandable so that an ordinary and knowledgeable person would know what they are contracting away. The better practice is to make it clear in the agreement that the signer is releasing the business even from its own negligence. Under these conditions, courts will enforce exculpatory contracts provided they do not violate public policy.
It is the public policy proviso that may stand in the way of an enforceable COVID-19 waiver. A business that fails to take adequate steps to protect the public and its employees from the novel coronavirus may have a hard time convincing a court to relieve it of liability – assuming the plaintiff can prove that the business was the source of infection. With respect to employees, it is highly unlikely that the business can waive away its duty to provide a safe workplace. Also, although it is unclear whether Florida’s workers’ compensation law will cover a “work-related” novel coronavirus exposure, Florida law prohibits waivers of work-related injuries.
Waivers may be of little value to protect a business against claims from its employees. The waivers may be more effective to protect a business from customers’ claims. The best approach is to follow federal, state, and local guidelines and requirements to try to reduce the spread of COVID-19, thereby maximizing the likelihood that a court will enforce your waiver agreement.