As we close out 2020, many restaurateurs and food service businesses are asking themselves, “Where do we go from here?” When considering your next steps as we enter the winter months, it is important for you to be aware of these recent developments.
COVID-19 Liability Waivers
A COVID-19 Liability Waiver may take many forms, but at its heart, it is a legal instrument in which the signer acknowledges the risk of catching the virus at the restaurant and releases the dining establishment from any and all liability. If you are wondering whether it is a good idea to require your customers to sign a waiver against holding you responsible for their testing positive for COVID-19, we urge you to consider whether you would be interested in signing a document full of legal jargon and warnings before sitting down for a nice meal.
To be sure, most of us would not think twice about signing a liability waiver if we were about to engage in activities far riskier than shuffleboard or ping pong, like, let’s say, parasailing, hang-gliding, bungee jumping…even horseback riding. A COVID-19 restaurant liability waiver seems to be in another category, however. While we can understand that a skydiving school would want to protect itself from liability because of the inherent risk the customer is taking in jumping out of an airplane, the guests entering a restaurant are, presumably, there with the expectation that eating in your establishment is as safe as it has been in the past, notwithstanding the virus. Consider the waiver’s signal to patrons that the restaurant is inherently unsafe, perhaps leading guests to ask, “If you can’t protect me against the coronavirus during my time here, then why am I here?”
Some factors you may want to consider before deciding to use liability waivers in a pandemic environment:
Waivers can be tricky and may not be enforceable. The waivers most likely to be enforceable must be narrowly tailored to the business, and contain clear and unambiguous language. Furthermore, questions remain as to how much weight waivers will carry in court, especially if a restaurant is not complying with health and safety laws or even guidelines. In light of these concerns, if you choose to employ waivers, it is critical to have your business attorney draw up the documents. Presumably, your attorney will be aware of jurisdictional requirements of formatting and presentation, font style and size, language to bold and/or underline and whether a certain color of paper should be used or avoided.
Think of the implications. A waiver won’t give you license to play loose with required law, guidelines and protocols on health and safety, but it may imply – to your guests and employees – that your establishment is slacking off on those laws and guidelines.
Set your guests’ expectations. An alternative to a COVID-19 liability waiver would be to provide each patron with a handout that describes your commitment to Center for Disease Control (CDC) and local health and safety guidelines and to ask that your guests abide by them as well. Our recommendation is to spell out what procedures and changes the restaurant has put into place in light of the pandemic, and your expectations for guest behaviors related to them. For example, you may want to ask guests to have patience at elevators as you limit the number of passengers that can enter in order to maintain social distancing. And, a no-exception enforcement of mask usage should be enforced and, for many patrons, welcomed. Putting such expectations in front of guests from the outset may be more effective against litigation than a waiver.
…and about your employees… While some businesses are asking employees to sign liability waivers, it is difficult to understand why, since the employees are already covered by Workers’ Compensation laws in every state. If your COVID-19 safety measures don’t adequately protect your employees, it may not only be Workers’ Compensation that comes into play – but Employers’ Liability and, perhaps even a class action lawsuit. Further, in the event of legal action against your business over COVID-19 (or other health and safety issues, for that matter), the first thing your employees’ attorney will be asking is whether you have policies, procedures and guidelines in place, whether you follow them and what training you provide to your employees. Failures here can be a bigger problem than not having waivers.
The best defense is always to consider and follow what reasonable people would do, and follow and communicate your Best Practices to keep everyone as safe and healthy as possible.
During this pandemic, landlords have been much more stringent about forcing tenants to comply with lease requirements for insurance, including demanding current certificates of insurance, and making sure that the policies are compliant. Tenants who do not comply are often threatened with eviction and/or evicted. Your relationship with your insurance brokers is more important than ever to make sure you are keeping up with what is required, and avoiding any potential exposures with your landlords.
Pandemic Coverage – New to the Market
A few carriers are now offering Pandemic/Epidemic insurance products. These offerings are tailored for future outbreaks, and can include coverage for non-physical damage business interruption claims, as well as crisis management losses Contact your insurance broker to learn more about the availability of this coverage, or contact me directly if this is something you might be interested in learning more about. HUB International is a leading global insurance brokerage, and has dedicated experts who can answer your questions.
For the latest information, guidance and resources on COVID-19 to help you protect what matters most, please visit www.hubinternational.com/coronavirus.