COVID-19 waivers emerge as flashpoint in absence of liability shield

Businesses and schools are increasingly turning to coronavirus waivers to guard against potential lawsuits in the absence of a federal liability shield. 

The use of waivers garnered national attention last week when the Trump campaign told attendees for an upcoming rally in Tulsa, Okla., that they must agree not to sue the campaign or venue if they contract the coronavirus. Since then, the Ohio State University football program has asked players to sign an acknowledgment of risk waiver regarding COVID-19.

Proponents of a liability shield argue that the proliferation of waivers shows there’s demand for a federal standard, while opponents say employers and academic institutions shouldn’t be given the green light to be negligent when it comes to protecting workers and students.

The waivers, however, are seen as a poor substitute for blanket immunity. 

“The immunity legislation is like a sledgehammer where the waivers are like a scalpel. The waivers only apply to people who sign them, not to family members who catch it from someone who signed it, for example,” said John Witt, a professor at Yale Law School.

While the impact on consumers and students can vary by state, legal experts say waivers act as a strong deterrent to keep people from taking legal action. For example, a Trump rally attendee who contracts coronavirus after signing a waiver acknowledging the health risks may be less likely to file a lawsuit. 

“I think waivers are quite effective even if they’re not legally binding because people feel that they signed it so therefore they don’t even talk to a lawyer, even if there are some technical details that aren’t well worked out,” said Tom Baker, professor at University of Pennsylvania’s law school.

The webpage to request free tickets to Trump’s rally on Saturday asks that people acknowledge an “inherent risk of exposure to COVID-19 exists in any public place where people are present” and makes people agree not to hold the campaign or other entities involved in the rally liable in the case of illness or injury.

Rep. Mark Pocan (D-Wis.), co-chair of the Congressional Progressive Caucus, introduced legislation on Tuesday that would limit the use of waivers in an effort to avoid situations like the upcoming Trump rally. The bill would prevent enforcement of coronavirus-related liability waivers for indoor gatherings of at least 1,000 people where COVID-19 cases are on the rise, like they are in Oklahoma.

The effectiveness of liability waivers and their impact on legal rights is hard to gauge given the differences in state laws.

“In many states, the waivers are going to be unenforceable. Different states have different enforcement standards and even within a state, there will be different enforcement for different activities,” Witt said. “Leaving it to private parties to work out in waivers that are signed and not signed will produce a lot of variation and unpredictability where the national standard would be certain.”

Still, the proliferation of waivers is sparking some backlash, particularly among Democrats and labor unions.

Sen. Sherrod Brown (D-Ohio) said students and workers shouldn’t have to take on the sole burden of protection.

“Colleges and universities should be doing everything in their power to keep everyone safe, including listening to scientists and public health experts as they consider resuming activities and repopulating campus. And they should be doing this without hamstringing workers or students’ ability to have a day in court if they don’t,” he told The Hill.

Other opponents argue that employers should not get the green light to be negligent.

“It is not the job of workers to provide a safe workplace. That is the responsibility of employers and the federal government. This is a moment to enforce rights, not waive them,” AFL-CIO Communications Director Tim Schlittner said.

Proponents of more protections for businesses are pointing to the waivers as a sign that employers want Congress to take action by passing uniform standards in the form of a liability shield.

“We need a national standard that protects businesses from COVID-19 lawsuits so everyone knows the rules of the road,” Harold Kim, president of the U.S. Chamber Institute for Legal Reform, told The Hill. “Waivers are not always a foolproof protection against lawsuits.”

The Senate isn’t moving quickly on a liability shield, considering the upcoming two-week July 4 recess and its more immediate focus on police reform legislation. Senate Majority Leader Mitch McConnell (R-Ky.) said last week there won’t be any legislative action on another coronavirus bill until senators are back in Washington on July 20.

Some legal experts say that the current patchwork of state laws is one reason for establishing a national framework in the form of a legal shield.

“I think the questions about the enforceability of waivers strengthens the argument for the Chamber and the Republicans who are pushing that message to say we need some legislative fix here because leaving it up to contract law, which varies state by state, is going to be too complicated. It’s going to leave a lot of uncertainty for employers,” said Christopher Feudo, co-chair of the COVID-19 task force at the law firm Foley Hoag.

Sen. Patty Murray (Wash.), the top Democrat on the Senate Health, Education, Labor and Pensions Committee, and other Democrats argue that a liability shield could discourage companies from acting responsibly.

“Republicans want to give businesses and other organizations a free pass for failing to take adequate safety steps in the middle of a pandemic, and deny those who become sick because of it the ability to seek justice,” Murray told The Hill.

In the meantime, waivers are likely to become more commonplace, a trend Baker said will require some tough decisions.

“The main thing is, do we want to essentially make people give up their tort law rights in order to participate in things that people find meaningful?” he asked.