Issue link: http://psai.uberflip.com/i/1252347
ASSOCIATIONINSIGHT Portable Sanitation Association International News BIWEEKLY EDITION MAY 27, 2020 Page 2 Continued on page 4 Will Liability Waivers Protect My Business in the Age of COVID-19?…continued from page 1 Liability waivers may be an option. States and companies are different—so there is no one-size-fits-all answer to managing your risk during the pandemic or any other time. In most states, though, you may want to consider adding a liability waiver to your standard processes. If properly constructed and used under the laws of your area, these documents can help limit the claims or damages that someone could obtain in a later lawsuit. Liability waivers should be used as part of a risk management strategy that also includes: • Knowing the scope of your insurance coverage and seeking guidance from your company representative regarding COVID-19 topics; • Following federal, state, and local guidance on topics relevant to your business (e.g., cleaning, hand washing, personal protective equipment (PPE), re-opening procedures, etc.) and documenting that you have done so; • Training your staff on policies and procedures related to the pandemic; • Enforcing, with proper documentation, those policies and procedures. How Waivers Work We've all signed a permission form that allows our child to go on a field trip or participate in a sport. It usually says we can't sue the school, the coach, the museum, or the tour guide because of anything that happens on the outing or while practicing or playing a game. You also sign a waiver when you rent a car, go up in a balloon, go skydiving, or download software. These documents seek to limit the damages you can recover later if something goes wrong. That doesn't stop you from suing whoever you like, but it can affect the outcome. No one at the PSAI is a legal expert, so you will want to confirm the specifics with an attorney from your state. Based on our research, though, we can tell you that: • Generally, liability waivers are considered contracts. Most states, with the exception of Connecticut, Montana, and Virginia, honor them in some form. • In most cases, arrangements which mitigate your liability for future negligence are valid and enforceable, provided the agreement is properly written and not contrary to law or best practices. Keep in mind, though, that no waiver can protect your company if you are shown to have engaged in willful and wanton conduct, reckless or intentional actions, or gross negligence as each term is defined in your state's laws. • When deciding whether you might be liable even if you have a waiver in place, a court usually looks to see if conduct is a significant departure from the ordinary standards of action or exhibits a mindful disregard for the rights and safety of others. For example, a waiver might insulate you if you do everything recommended by CDC, your state, and the PSAI and someone still gets sick from your portable restroom. It will probably not insulate you if you didn't use proper cleaning products/techniques and your unmasked service tech sneezed in the customer's face. Similarly, lawsuits alleging intentional acts such as fraud—like claiming your company is the preferred provider for the CDC—would ordinarily not be protected by a waiver.