In general, liability waivers can be a useful tool for businesses and individuals to avoid personal injury lawsuits and liability. Typically, liability waivers are associated with participating in a dangerous activity, such as skiing, boating, gym classes, or school activities. The individual participating in the activity signs the waiver, acknowledging that he or she accepts the risks associated with the activity and agrees to release the business or individual from liability related to these risks. However, in response to the COVID-19 pandemic, liability waivers by patients for COVID-19 related risks are becoming increasingly common. While these waivers are likely enforceable, providers should be aware of potential legal issues if patients are asked to sign COVID-19 liability waivers.
Each state evaluates the enforceability of liability waivers differently. For example, in some states, such as Louisiana, Virginia, and Montana, personal injury liability waivers are all invalid. However, in most states, including Michigan, these liability waivers are generally enforceable, subject to certain restrictions. In Michigan, parties may contract against liability for harm caused by ordinary negligence, but not gross negligence, or willful and wanton misconduct. Therefore, a party will not be protected from liability if it intentionally or recklessly engaged in the conduct that caused harm. Although not explicitly stated in laws or statutes in Michigan, other important factors for providers to consider in drafting these liability waivers include:
- Clear language. The waiver should clearly state that the individual is releasing the business or provider from liability. The terms should also be easy for the parties to understand.
- Signed and agreed to by the patient. Waivers should be signed to show that patients have read, understood, and agreed to the release of liability related to COVID-19.
- Public policy. Although Michigan law is silent on the matter, certain states require liability waivers to comply with public policy. COVID-19 liability waivers should be written to be in line with public interest.
Whether a waiver will protect a provider from COVID-19 related liability will depend on the jurisdiction, the above factors, as well as the individual circumstances of each scenario. Providers will have an increased chance of success with COVID-19 liability waivers if those factors are considered, local laws are followed, and the potential risks are clearly articulated to leave little room for factual interpretation. Providers requiring patients to sign a COVID-19 liability waiver must also implement best safety practices for preventing COVID-19 transmission and should keep track of and follow the latest federal, state, and local COVID-19 guidance. However, it is important to note that COVID-19 liability waivers are new and have not yet been interpreted by courts. Therefore, it remains to be seen whether states will find them enforceable.
For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding new developments in COVID-19 regulation. If you or your healthcare entity has any questions pertaining to healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or firstname.lastname@example.org.