Virus waivers appear across region
Gyms, hair salons, summer camps, pools and vacation rentals all want their customers back. What they don’t want is to get sued.
Enter the COVID-19 waiver. The documents are popping up at a variety of establishments, asking patrons to waive their right to sue if they believe that they contracted COVID-19 there.
Liability waivers aren’t new, but they have traditionally been used more frequently at places that offer higher-risk activities, such as skiing or horseback riding, said Mary Crossley, professor at the University of Pittsburgh School of Law.
“With the pandemic, even going about day-to-day activities that normally would be low risk, because of COVID become high risk,” she said. “We haven’t had this sort of context before.”
The waivers often describe the risks of COVID-19 and the measures that the establishment is taking to prevent spread. They may also note measures that customers are expected to take, such as staying home or canceling an appointment if they are sick.
At the Sewickley YMCA, the waiver includes a sentence that “Sewickley Valley YMCA in no way warrants that COVID-19 infection will not occur through participation in Sewickley Valley YMCA programs or accessing Sewickley Valley YMCA facilities.”
At the Hair Flair Salon and Spa in Latrobe, the waiver notes: “Even taking every
precaution, understand that the COVID-19 virus has a long incubation period, during which carrier of the virus may not show symptoms, and may still be highly contagious. By signing this waiver, you agree to comply with our protocols, and agree that you are in the salon at your own risk.”
When President Donald Trump held a rally last month in Tulsa, Okla., attendees had to agree when they registered that they would not hold the Trump campaign or other entities associated with the rally liable if they contracted COVID-19 there.
At Point Park University, employees and students are being asked to acknowledge that they assume the risk of contracting COVID-19 by being on campus. “Assumption of risk” documents fall short of those waiving their ability to sue but are on a similar continuum.
“They have the same goal,” said Rona Kaufman, an associate professor at the Duquesne University School of Law, “which is to waive liability.”
The union representing full-time professors at Point Park is advising its members not to sign the agreement, said unit chair John Rice.
“Point Park University is working to bring students, faculty and staff back to campus in the safest possible manner following best practices laid out by local, state and federal guidelines,” said university spokesman Lou Corsaro. “We are working directly with our faculty’s union to understand their concerns.”
But do the waivers actually do anything? At this point, there have been no court decisions in Pennsylvania related to COVID-19 waivers, said Ms. Kaufman, who teaches contract law.
“We do not know how a Pennsylvania court will assess the validity of a COVID19 waiver,” she said. “It’s going to be a year before we know where the law stands on this, really.”
Ms. Kaufman said her sense is that the courts would likely view the contracts as valid — meaning that if someone signed a waiver, it would be difficult to prevail in a lawsuit alleging that they had been harmed by contracting COVID-19 at that establishment.
That would change if an establishment somehow spread COVID-19 intentionally because Pennsylvania courts have not interpreted liability waivers to apply to intentional actions.
Even if the waiver were deemed invalid, however, a plaintiff would have to prove that they had actually contracted COVID at that particular place. And determining exactly where someone picked up a virus is much trickier than, for example, proving that someone broke an arm at a trampoline park.
“It’s not clear that any of these organizations, institutions or companies would ever be liable if someone caught COVID for any reason,” Ms. Kaufman said. “People catch all sorts of infectious diseases all the time — but it’s rare they are able to sue.”