Will COVID-19 Liability Waivers Be The New Normal?

It’s hard to even remember life pre-pandemic life, isn’t it? Remember the mundane normalcy of it all? Waiting forever in the car line at school, force-feeding our kids dinner at 4:30 because of weeknight practice, letting them have a bunch of friends over because, WTH, the house is trashed anyway—what’s a few more kids?

Remember commuting to work and buying gas and grocery shopping without masks and not living in fear every time someone entered your six-foot safety bubble?

It seems like we’ve lived a lifetime, but it’s only been a season. And yet, in a few short months, COVID-19 swept in and changed everything. And it’s not even close to being done.

Here’s yet another new thing you might start to see (something that back in February you’d have laughed at and said “that’s ludicrous!”)—a liability waiver handed to you as you try to go out to lunch or shop for groceries.

Liability waivers certainly aren’t new. We’ve all signed them, absolving the business owner and their establishment of any liability if, for example, our kid gets a concussion at the rock climbing gym. Or they sprain an ankle falling off the balance beam at gymnastic lessons. We sign them when we join the gym, when we sign our kids up for sports, and when we do adventurous things like sky-diving or bungee jumping.

But have you ever had to sign one before eating at your favorite restaurant? Or before shopping the Dollar Spot at Target? Or before getting your fave vanilla caramel latte? Soon, you might be asked to.

In the near future (if it hasn’t happened already where you live), entering your favorite local eatery might involve the following: mandatory mask-wearing (except to eat, of course), sanitizing your hands upon entry, having your temperature taken, being told to view the menu on your phone, and being told that you only have your table for 90 minutes. And, you might be asked to sign a liability waiver before taking your seat.

A recent article on SFGATE, a section of The San Francisco Chronicle, says safety measures like these might become commonplace as more and more of America continues to open up and try to resume normal life. The article also predicts that it won’t just be restaurants either. Other businesses like like grocery and retail stores, dentists, and hair salons will impose similar requirements as well.

Knowing the likelihood of this change, liability attorney Richard C. Bell tells SFGATE there are some things we, as the consumers, should know as we start to see these waivers popping up.

First and foremost, Bell says we need to remember that we have a lot of power as consumers. And while that doesn’t give us free license to disrespect employees doing their job (one of which may be to ask you to sign a waiver), you do have the right to ask questions and know what you are signing.

“If someone wants you to sign a waiver, you should ask them everything they’re doing to protect your health and safety,” Bell says. And he even encourages us to request a walk-through of the establishment so we can observe what measures the employees are taking to protect customers from COVID-19. He also added, when speaking with Scary Mommy, that we should never, ever sign anything without reading it first, and if we don’t understand something, we should ask for clarification.

Bell also tells Scary Mommy what consumers should expect when they’re handed a liability waiver to sign. They’ll vary state by state, he explains, as individual state courts will dictate the waivers’ content. But he does say across the board we should expect large, clear font with text written in “the consumer’s language, not a lawyer’s language,” so the average consumer can read it without issue. The basic point, Bell says, will be this: “If you get COVID from our establishment, we’re not liable if you bring a lawsuit.”

A 2020 pandemic version of “enter at your own risk.”

Will these waivers protect a business from any and all lawsuits? No. Bell says that he anticipates these waivers only protecting businesses in charges of ordinary negligence, but not gross negligence. That means if a restaurant, for example, is having their employees wear masks, places their tables six feet apart, and properly sanitizes everything according to current safety recommendations, and someone still claims to get sick while inside their eatery, they’re likely protected. Maybe they missed a cup, or the bathroom wasn’t wiped down every hour on the hour because the waitstaff had a lunch rush, for example. But overall, the establishment, its owners, and its employees are doing everything they can.

On the other hand, if a business commits “gross negligence,” Bell explains, these waivers won’t necessarily save them from a COVID-19 suit. Examples of this type of offense might include putting restaurant tables only two feet apart, or letting an employee come to work who is showing visible signs of COVID-19. These actions are reckless and businesses can’t “contract out of them,” Bell tells Scary Mommy.

However, will it be easy for any patron to bring forth a lawsuit and sue an establishment if they get sick with COVID-19? Will we see a wave of litigation if we don’t have these protective waivers? Attorney Richard Bell says no.

The bottomline, Bell explains, is that it will be incredibly difficult for someone to prove that they contracted COVID-19 inside a particular building unless there is clear contract tracing. And for that reason, Bell, as consumer attorney, thinks many potential cases would fizzle out before making it very far.

Okay, so if a huge wave of litigation is unlikely, why the waivers? For now, it seems they’re providing a much-needed sense of security in a tumultuous time. Businesses are desperate to re-open and are scared. Every thing is different now. Everything has changed. No one knows what to expect tomorrow, next week, or next month. So maybe having customers sign a waiver is one necessary step right now so that everyone—customers and employees alike—knows that everyone else is doing their part.

What will the future hold when it comes to liability waivers like these? Bell says that will likely be dictated by consumers. If they pitch a fit and refuse to sign waivers and other shops and restaurants don’t have them, meaning a disgruntled customer can “take their business elsewhere,” they’ll probably die out. If, however, we all get used to them like we’ve been forced to with so many other COVID-19 related changes, they might stick around.

You’re the consumer, and you have the right to decline signing if you aren’t comfortable. Although, as Bell explains, could you still bring a lawsuit either way? Yep. But would it incredibly difficult to prove where you contracted COVID-19? Probably.

Personally, if I’m finally escaping my kids and sneaking away for a date night or grabbing coffee with a friend and need to sign a piece of paper in order to enjoy my chicken salad, I’m probably going to without much hesitation. Just like I’ll wear my mask until I start eating and accept that there may be a longer wait because there are fewer tables and fewer employees. And I’ll read the menu on my phone and relinquish my spot at the table after 90 minutes.

Why?

Because we’re living in a freaking pandemic, people. Let’s just all cooperate and do what we need to do so that businesses can flourish and fewer people die and we can return to some sense of normalcy as soon as possible. Sign the waiver, or politely decline. Just wear a mask while you do it, wash your hands after, and remember that workers are people too, just trying to earn a paycheck, so be kind.