The BDN is making the most crucial coverage of the coronavirus pandemic and its economic impact in Maine free to all readers. Click here for all coronavirus stories. You can join others committed to safeguarding this vital public service by purchase of a subscription Where donate directly to the press room.
WASHINGTON — As businesses reopen across the United States after coronavirus shutdowns, many are requiring customers and workers to sign forms saying they won’t sue if they catch COVID-19, the disease caused by the new virus.
Companies fear being the target of litigation even if they follow safety measures from the Centers for Disease Control and Prevention and public health officials. But workers’ rights groups say the forms force employees to give up their rights if they get sick.
Liability waivers, similar to what President Donald Trump’s campaign is demanding for people to attend a Saturday rally in Tulsa, Oklahoma, would protect businesses in states that don’t have liability limits or immunity from coronavirus-related lawsuits.
So far, at least five states — Utah, North Carolina, Oklahoma, Arkansas and Alabama — have such limits through statutes or executive orders, and more are considering them. . Business groups such as the United States Chamber of Commerce are pushing for national immunity legislation.
The new coronavirus has sickened more than 2 million people in the United States and killed more than 115,000, according to Johns Hopkins University.
At Salon Medusa in West Hartford, Connecticut, hairstylist Lena Whelan says she’s only been using two of six styling stations since it reopened on June 1. Customers must wait outside, they must wear masks, and all stations and tools are sanitized between customers. .
Despite all these safety measures, customers must sign a form indicating that they will not proceed if they are infected with the new coronavirus. The form, which also asks customers if they or family members are showing symptoms of the virus, gives the salon additional legal protection, Whelan said.
Critics argue that liability waivers open the door for companies to circumvent protocols such as erecting plexiglass barriers, providing face masks and other protective equipment and maintaining the appropriate distance between people without suffer repercussions.
Waivers are particularly onerous for workers who may feel compelled to sign them in order to keep their jobs, unlike clients who at least have the choice to walk away.
“It’s a terrible choice for an employee,” said Hugh Baran, a lawyer with the National Employment Law Project, a labor advocacy group. “Do you sign this and potentially waive your legal recourse or do you refuse and do you feel like you are going to lose your job?”
Worse, in many states, if workers refuse to sign waivers and return to work, they risk losing their unemployment benefits, Baran said. Additionally, immunity legislation and liability waivers disproportionately affect black and Latino workers, many of whom have jobs that cannot be done remotely, he said.
Lawyers say many business clients ask about waivers. Whether they can be enforced varies from state to state and is subject to debate. Owners are wise to take a “prevention is better than cure” approach, said John Wolohan, professor of sports law at Syracuse University.
“I find it hard to believe that people don’t understand the danger of going out in public and interacting. But when someone gets sick, I’m sure they’ll claim the company didn’t protect them the way they should have. By having a waiver, the company will better withstand the lawsuit,” Wolohan said.
In 45 states and the District of Columbia, courts will generally enforce voluntary waivers, according to “The Law for Recreation and Sports Managers,” a book Wolohan co-authored with Doyice Cotten. Connecticut, Hawaii, Louisiana, Virginia, and Wisconsin offer consumers the best chance to challenge disclaimers.
But Baran says a lot depends on how state contract laws have been interpreted by the courts. Many states, he said, have laws in place stating that companies have a general duty to maintain healthy and safe working conditions. In some cases, however, courts have determined that employees can waive those rights, he said.
“It’s a new situation,” Baran said of the coronavirus-related liability forms. “It is unclear how state courts would view such waivers.”
It’s hard to find data on how many companies require employee or customer liability waivers. Lawyers say the forms are popping up in small businesses such as hair salons and gyms where maintaining social distancing is difficult. But it also appears on the New York Stock Exchange, where Jonathan Corpina, senior managing partner of Meridian Equity Partners Inc., said Monday he must sign a waiver to enter the trading floor.
Cheryl Falvey, a partner at the law firm Crowell and Moring in Washington, D.C., and a former top attorney at the Federal Consumer Product Safety Commission, said she doesn’t think most employers would try to sign their workforce.
Falvey also noted that there are circumstances the waivers would not cover, including if someone who signs a waiver becomes infected and then spreads the disease to family members or neighbors.
“I don’t think these waivers would cover that,” Falvey said. The wife of an infected person might say, “I didn’t sign that waiver. You let him in and you didn’t protect him,” she said.
Harold Kim, president of the Institute for Legal Reform at the U.S. Chamber of Commerce, said federal immunity legislation would be better for businesses than a patchwork of conflicting state laws. The legislation sought by the chamber would be temporary and would only grant immunity if companies followed CDC and state guidelines on the virus, he said.
“You don’t get those protections if you don’t follow those tips,” he said.
Workers who become ill on the job might not be able to sue their employers, but would have access to workers’ compensation to cover lost wages and medical care, legal experts said. The proposed federal legislation would not affect workers’ compensation programs, which most states have, Kim said.
As of Monday, 2,741 lawsuits have been filed in the United States for COVID-19 infections, according to a complaints tracker maintained by law firm Hunton Andrews Kurth. Many of the cases involved government shutdown orders and which businesses were deemed essential. Only seven were from consumers and 49 were filed by employees for exposure to the virus or other related injuries. Kim said federal legislation would prevent a sharp rise in litigation.
Story by Tom Krisher and Mark Sherman. Associated Press writer Alex Veiga contributed to this report.