Should I Sign a COVID-19 Liability Waiver?

Many businesses that have reopened during the COVID-19 epidemic have asked customers to sign a document waiving their right to sue in the event that they contract COVID-19 on the premises. Recently, colleges and universities have begun adopting this practice as well. As just one example, students at Penn State have recently been asked to sign a waiver acknowledging the risk of returning to campus during the pandemic. The waiver states that students assume the risk of exposure to COVID-19, which may result from attending Penn State or participating in Penn State activities.

It is important to keep in mind that the enforceability of liability waivers is a matter of state law. In many states, waivers will be deemed unconscionable and unenforceable due to one side’s lack of bargaining power. In Pennsylvania, liability waivers or exculpatory agreements are generally enforceable if: (1) the clause does not contravene public policy, (2) the contract is between persons relating entirely to their own private affairs, and (3) each is a free bargaining agent to the agreement. Typically, these questions center around whether the agreement is against public policy. Whether Pennsylvania courts will enforce liability waivers for exposure to COVID-19 remains to be seen.

If you are asked to sign a COVID-19 liability waiver, should you sign it? Here is some advice:

• Think twice before signing. No one should ever sign a waiver without giving it thorough consideration. Consider what you are signing away, and weigh that against what you are getting in the exchange.
• If a business has taken reasonable precautions to minimize the risk of COVID-19 transmission, a COVID-19 liability lawsuit against it could be very difficult to win, so a waiver may have limited practical significance anyway.
• If you decide to sign one, try to negotiate first. You may be able to cross out or modify language that is particularly one-sided.

Melissa Jabour is an Associate Attorney with Atlee Hall. Atlee Hall’s mission is to achieve justice and protect community. Our attorneys share insightful articles that help people consider their options and understand their rights.