Florida’s economy has been slowly rebuilding since Governor DeSantis lifted the State of Florida’s stay-at-home order on 4/30/2020. Non-essential businesses continue to struggle financially from the shutdown and the newly emerged issue of pandemic-related liability risks. Although several states have passed COVID-19 laws to limit businesses’ liability, currently, there is no legal immunity in the Sunshine State for pandemic-related claims. Business owners run the risk of lawsuits from employees and consumers who claim to contract COVID-19 on their premises.
A liability waiver is an agreement in which one party gives up the right to file a civil lawsuit against another party for damages that have occurred on the premises. Gross negligence, recklessness, and intentionally harmful conduct invalidate a waiver. Liability waivers are becoming commonplace at recreational facilities, schools, salons, summer camps, and construction sites. These waivers gain popularity to shield business owners from claims; however, there are questions regarding their enforceability, as waivers regarding the pandemic are uncharted territory in the legal arena.
Guidelines for Waivers
Covid-19 Liability waivers should acknowledge the inherent risks that a person assumes from exposure to infectious diseases, including COVID-19. These contracts should be drafted with specific language about the coronavirus’s contagious nature, even with heightened sanitary precautions. Vague or ambiguous wording in a waiver can invalidate its terms. The simple posting of a sign at the place of business is not enforceable. A waiver may not be valid if an individual feels they have signed the document under duress, or if they fear retaliation from their employer. Adverse employer actions can include termination, demotion, suspension, or other negative consequences. An argument can be made to invalidate the waiver if a person signs but does not fully understand the contents’ language.
COVID-19 Liability Waivers at Construction Sites
The enforceability of liability waivers for COVID-19 at construction sites for contractors and subcontractors is regulated by the Occupational Safety and Health Act (OSHA). The risk of coronavirus differs from physical injuries, which are easily identified and investigated. Physical harm is the consequence of an unsafe condition or hazard. It would be difficult to identify and prove the contact that caused an infection and link it to the business owner’s negligence. Workers’ Compensation grants employees the right to file a claim, and that right cannot be waived. OSHA requires employers to keep the workplace free of safety hazards.
Asking or requiring an employee or other person to sign a liability waiver may imply that a business owner does not provide a safe environment.
While waivers may limit or prevent liability in some cases, they do not provide immunity from lawsuits. The profound impact of COVID-19 is creating a host of legal issues for the courts to consider. Significant legal and policy concerns have emerged, and these challenges will likely be the focus for many years to come.
The best defense against a claim is to ensure that construction sites are in full compliance with the Center for Disease Control, OSHA, state, and local government regulations regarding the pandemic. Some of these interventions include actively encouraging sick employees or those exposed to the virus to stay home. Wearing cloth face coverings, providing personal protective equipment, practicing social distancing, taking daily temperature checks, and frequent disinfection of the workplace can mitigate the risk for pandemic-related lawsuits.
The Boutty Law Firm P.A. Offers Effective Legal Services.
A COVID-19 liability waiver for your business should be tailored specifically to your industry. The Boutty Law Firm P.A. is a knowledgeable multi-service law firm with extensive construction industry experience. We understand the construction industry’s nuances with over twenty years representing contractors, subcontractors, and property owners. We counsel and represent clients in risk management and disputes through contract development, negotiations, and courtroom litigation. Our strategies are designed to meet the objectives of your company goals.
For a free, initial consultation with a business law attorney to discuss risk management concerns during the pandemic, contact The Boutty Law Firm P.A. at 407-622-1395. Our office is in Winter Park, Florida, and we represent clients in Orange, Seminole, Osceola, and Volusia, Florida.