The proponents of reopening America amid a pandemic like to put a positive spin on things, whether it is President Trump touting his rallies, college football pumping up enthusiasm for the fall season or college administrations telling kids to get ready to head back to dorms and classes. But there is a catch. Many of those yelling for a return to normal have attached a legal document to their “come on back” policies — a waiver of legal liability. What does this say about the risk involved and will these waivers really release anyone or institutions from liability if you get sick or die?
Stressed and desperate nonessential businesses are pushing the boundaries of their city and state COVID-19 restrictions to reopen. They do so knowing the immutable threat — bringing people together causes sickness and death. We should commend our bars, sports arenas, schools, and salons for their survival instinct and we should recognize the critical roles they play in the economy and for our well-being. But they should not be granted immunity from liability for patrons infected with COVID-19.
Businesses and political events defined by gatherings are crafting pandemic waivers of liability — contracts that require patrons to assume the risk of infection, sickness, and death when they receive products and services, and to give up the right to sue. But the social and ethical purposes of liability waivers are not applicable to a pandemic. Such waivers make sense for many inherently dangerous activities. At a baseball game with well-placed nets and warning signs, you give up the right to sue for being hit by a ball. At a gym with careful feature designs and warnings, you give up the right to sue for dropping a weight on your foot. Doing something fun or helpful but a little dangerous, you choose to accept the disclosed risks you face. But the ongoing COVID-19 pandemic is more than a little dangerous, the risks are not fully disclosable, and they are not just to yourself — they extend to everyone who comes near you for days afterward.
Each state has its own approach to recognizing liability waivers. Three (Louisiana, Montana, Virginia) don’t allow them at all. In New York, a liability waiver is only enforceable if it does not violate the public’s interest, the intention of the parties is expressed in unmistakable language, and if the provisions are clear and coherent. This means explaining the risks of COVID-19, what the business is doing to mitigate these risks, and making it clear that the customer is taking on these risks.
But what about the first requirement? Believing that pandemic waivers are in the public’s interest means reopening nonessential businesses or holding political events are worth the continued spread of the virus and resulting deaths. While this is hotly debated, we are obligated to fully inform and empower individuals to decide whether to patronize nonessential businesses. Under the current circumstances, this is hard. Allowing pandemic waivers would mean making an informed choice is near impossible.
Many states require that the parties to a liability waiver have equal bargaining power, and some require that consumers actually have the opportunity to bargain. When your favorite bar opens, or sports team invites you back to the stadium, will you question their disinfecting methods, distancing enforcement, and employee mask use? Will you be able to adequately consider the gap-filled data on the risk of transmission in bars, churches, and stadiums, your personal risks, and the risks to your loved ones? Will you bargain with the managers, either demanding that they increase their protection measures or bear some of the risk if you get infected? Or will you pump your fist, don your team gear, and race through security to get to your favorite seat?
The damage is already accumulating in sports. College athletes desperate to play are signing waivers they haven’t read to start training, and many are already testing positive. Some schools claim the documents are only “pledges,” to educate and encourage best practices. Whether these pledges are enforceable waivers or not, the gamble is that families will assume signing means they cannot sue. Some pledges make it clear that choosing not to play won’t affect scholarships, but many of these kids live to play and their families rely on housing and food support from the institution. Can we expect these athletes to choose not to play, or even bargain?
At minimum, pandemic liability waivers offload the responsibility of deciding when it is responsible to reopen to us, and very few of us have the data, analysis tools, or will to make these decisions. Instead, we trust our favorite businesses to give us good times and take care of us. At worst, waivers incentivize businesses to not take maximum precautions and might have a chilling effect on economic rebuilding if people discover they cannot be compensated if they get sick.
The enforceability of pandemic liability waivers will be determined when the family of someone who signed, got COVID-19, and died tries to sue the entity where they think the virus was contracted. Judges will have to make these decisions. And they cannot easily use previous cases to decide because pandemic liability is unprecedented. We urge them to use ethics. The consequences of allowing people to give up their right to sue would be disastrous. But, not recognizing waivers (which means allowing suits) does not mean suits will prevail. In many cases, it will be difficult to prove that one got sick at the event in part because of COVID-19’s incubation period. A blanket expectation that businesses shoulder the financial burden of continued infection would be just as damaging. So, should waivers really stop lawsuits? No. Will those who sue win? Depends. Will it make more sense for businesses, churches, colleges, sports and conventions to educate about the risks and unknowns and try hard to diminish them? Absolutely.
Arthur Caplan is the director of the Division of Medical Ethics at the NYU Grossman School of Medicine. Brendan Parent is assistant professor in the Division of Medical Ethics at the NYU Grossman School of Medicine.
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