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COVID-19 Liability Waivers: Are they a good idea?

By: Cristina N. Hyde, JD

As individuals begin returning to work in New Jersey, business owners and health care practitioners are rightfully concerned about exposure to liability related to corona virus disease 2019.  Therefore, many are exploring the option of having associated individuals waive their right to sue for injuries related to a COVID-19 diagnosis before they return to work or before they patronize their facilities.

Are liability waivers a good idea?  There is no simple answer to this question.  Although there are concerns that asking individuals to sign a waiver might result in hard feelings and low office morale, many still believe they are better off obtaining the waiver.  If you are among them, there are a few things you should know.

In New Jersey, the validity of a liability waiver related to COVID-19 is unknown.  Waivers are often a deterrent to litigation and generally enforceable in New Jersey, however, there are exceptions.  For example, liability waivers must not adversely affect the public interest.  In addition, New Jersey courts have not yet interpreted a waiver disclaiming liability for COVID-19.  Without specific precedent, it is expected that courts will engage in a fact-sensitive analysis.  Language contained in waivers will likely be analyzed closely, making it extremely important that your waiver is well-drafted.

Reckless and intentional acts, otherwise known as gross negligence, cannot be waived.  Business owners are required to provide safe working conditions.  A liability waiver may not offer protection from a claim that a business or practice knowingly or intentionally failed to provide basic protections, including a failure to adhere to state and federal health and safety guidelines related to COVID-19.

Despite signing a liability waiver, employees maintain their right to workers’ compensation.  In New Jersey, an employer cannot ask an employee to waive his or her right to workers’ compensation.  On May 4, 2020, New Jersey legislators also went one step further and introduced Senate Bill No. 2380, creating a rebuttable presumption that the contraction of COVID-19 by an individual working in their capacity as an essential employee during the public health emergency is work-related.  If approved, this law will take effect immediately and be retro-active to March 9, 2020.

Campanella Law Office will continue to follow Senate Bill No. 2380 and update clients accordingly.  Meanwhile, if you have any questions regarding liability waivers and your business or practice, please Contact Us.

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