As businesses reopen amid a slew of safety and cleaning requirements, many are asking something new of their customers and employees: a promise not to sue if they get sick.
Liability waivers have long been used for risky endeavors such as downhill skiing or youth sports. But in the unchartered legal waters of the coronavirus pandemic, Minnesotans now find themselves signing such forms when they get their hair cut, nails painted and teeth cleaned.
“It’s a whole new world,” said Matt Murphy, an attorney with Nilan Johnson Lewis in Minneapolis. “Everybody’s freaked out.”
With no specific legal protections at the federal or state level, businesses see the waivers as an extra layer of protection from potential lawsuits, even though it’s not yet clear whether such waivers will hold up in court.
“When people think of liability waivers, they think they're weighing risks that are particular to that activity,” Murphy said. “COVID isn’t an inherent risk of anything. It’s an inherent risk of life now. But there are activities that will increase that risk.”
Kim Martinez, artistic director at a youth dance company in Falcon Heights, recently drew up a three-page, single-spaced liability waiver specifically addressing potential exposure young dancers might have to the coronavirus. It supplements an existing general injury and risk waiver.
“We haven’t had any pushback whatsoever,” said Martinez, who restarted classes on July 1 at Out on a Limb Dance Theater Company and School.
Participants agree not to sue the nonprofit or anyone affiliated with it should they contract COVID-19, the illness caused by the coronavirus.
They also are required to stay away from the studios if they or their children have symptoms or a confirmed case of COVID-19, or if they’ve traveled to a high-risk location identified by the Centers for Disease Control and Prevention.
“People understand you cannot eliminate the risk,” Martinez said. “But you can do everything you can to mitigate it.”
The dance company is taking its own steps, including sanitizing rooms between each class, and staggering classes so students enter and exit specific doors without passing each other in the hall. Stickers mark social distancing space.
It also spent $1,300 on an extra sink and sanitizing station, and it dedicated one bathroom for hand-washing. It closed the lobby and encouraged parents to drop off their children to reduce the number of people in the space, which is in the basement of a strip mall.
Dancers and staff agree to temperature checks and masks are required. Zoom classes remain an option for anyone not comfortable returning or who isn’t feeling well.
“I didn’t expect people to sign it without understanding what our plan was,” Martinez said.
Parent Fred Adamski sees the new form as part of life in the age of a pandemic.
“Before COVID we were signing waivers,” said Adamski, of Blaine. “It’s basically just adding another line.”
He weighs the risk and reward for his 7-year-old son, Oliver, who dances competitively in addition to taking classes at Out on a Limb.
“He’s got a high motor,” Adamski said. “It’s good for the business to get the kids in and have them do something. They’ve been starving for interaction with their friends and someone other than mom and dad for months.”
Liability waivers related to the coronavirus became a hot topic after President Donald Trump required them for attendees of his June 20 rally in Tulsa, Okla.
Now, religious organizations are considering them and traders sign off on them before setting foot on the floor of the New York Stock Exchange. Colleges are asking faculty, staff and students to sign waivers, although a spokeswoman said the University of Minnesota isn’t one of them.
The Greater Twin Cities YMCA has a coronavirus-specific liability waiver form for members to sign, as do some local hockey rinks, real estate companies, dentists and chiropractors.
“We’re seeing businesses who never used a waiver, probably never contemplated a waiver, consider the use of it because of the COVID-19 virus,” said Maria Trysla, chief executive of Oregon-based Smartwaiver.com, which manages online waivers for businesses. “Hair salons, nail salons, tattoo parlors, day spas, sports clubs.”
Business has spiked since May as companies began preparing to reopen amid the pandemic, she said.
“There’s a lot of uncertainty. What customers are telling us is that the use of a COVID waiver is a low-risk safety blanket.”
In a survey of small-business executives by the Society for Human Resources Management, 53% said they were somewhat or very concerned about an increased risk of lawsuits or liability while reopening or operating their business in the COVID-19 environment. A majority said state or federal protections would help.
Waivers are covered under state laws, which vary widely. Courts generally won’t enforce waivers when conduct was reckless or intentional or if a person was tricked or forced into signing one. They also don’t generally hold up as workplace agreements with employees.
In most states, including Minnesota, businesses have a duty to maintain healthy and safe working conditions. That’s why many employment lawyers urge clients to stick to advice from state public health officials and the Centers for Disease Control and Prevention.
“I wouldn’t rely on a liability release or waiver if I’m a company,” said attorney Sarah Riskin, also of Nilan Johnson Lewis. “I’d want to make sure I’m taking all the reasonable steps based on the best available guidance to mitigate or prevent exposure to the extent that I can.”
The U.S. Chamber of Commerce and other business groups have pushed for national liability protections for business owners and employers. Congressional Republicans have generally backed the idea.
Unions and workers’ rights groups oppose such efforts, however, fearing employees may be signing away their rights. The forms might also encourage businesses not to take safety steps to prevent the spread of the virus.
At least seven states — Alabama, Arkansas, Iowa, North Carolina, Oklahoma, Utah and Wyoming — have provided businesses some protection from coronavirus-related lawsuits, either through legislation or executive orders.
In Minnesota, two bills that would have granted businesses a safe harbor from lawsuits stalled during the regular legislative session but are still being lobbied by industry groups.
“All kinds of new things are emerging — like the potential face mask requirement or mandate,” said Doug Loon, president of the Minnesota Chamber of Commerce, whose organization backs legislation to prevent what he called “opportunistic lawsuits.”
“Anybody who engages with the public needs certainty, so we don’t have additional burdens, additional costs to businesses at a time when the economic downturn has been devastating to segments of our state’s economy.”
Norms are shifting. Personal information once reserved for conversations at the doctor’s office now are being shared and recorded with a wide range of businesses.
At Haus Salon’s three Minneapolis locations, customers are sent e-mails the week of an appointment asking how they’re feeling, whether they’re having virus symptoms, such as a fever or loss of smell, and also about recent travel.
Anyone with a temperature above 99.5 won’t be allowed in. They’ve turned a few customers away, said Charlie Brackney Love, one of the salon’s co-founders.
“Most often, a client sees the e-mail, sees communication online and they’ll screen out themselves,” Love said. “They’ll say, ‘I have a little cough and I don’t want to expose anyone to it.’ ”
He said the salon needs to protect workers as well as reassure customers.
“Once people come in and see we have this sterile environment, they say, ‘I feel safer than I was expecting to,’ ” he said.