Leadership Letter
August 2021
ASK COUNSELOR TARA
ASCE’s General Counsel Tara Hoke responds to legal questions posed by Sections and Branches here each month. Send Tara an email with your question.
Should we require a ‘COVID waiver’ for our upcoming in-person event?
With fall approaching, many of ASCE’s volunteer leaders have turned their thoughts toward planning for activities to close out the year. Most localities in the U.S. have seen a significant reduction in pandemic-related restrictions, opening the door for resumption of in-person activities. However, vaccine uptake in many areas has been less than anticipated, and the proliferation of the delta variant threatens to be a major setback in terms of COVID-19 infection and illness. In view of these factors, a number of volunteers have contacted ASCE with questions about whether sections, branches, or other units should require attendees at in-person events to sign a “COVID waiver.”
Unfortunately, the only clear answer to this question is that there is no clear answer to this question. While there has definitely been an uptick in the use of COVID waivers by entities ranging from hair salons (http://www.vogue-salons.com/forms/covid19-liability-release-form/ ) to amusement parks (https://disneyworld.disney.go.com/park-pass-terms/), there has not yet been enough litigation to say with any certainly whether COVID-related waivers will hold up in court.
That said, some general observations are worth noting:
1. Much like any other waiver, enforcement of COVID-19 waivers is likely to vary from state to state. While some states (e.g., Virginia) routinely reject waivers as a matter of public policy, others are more likely to enforce them as long as the waiver is written clearly and specifically enough that the persons signing understand what rights they are signing away.
2. A waiver is not a silver bullet, meaning that no waiver is guaranteed to protect an organization from liability. The first thing any plaintiff’s attorney is going to do is to attack the validity of the waiver, and courts can and routinely do toss out waivers on the basis of inadequate or overreaching language, or for other perceived faults.
3. A waiver is certainly not a substitute for following appropriate safety precautions. Ultimately your goal is the safety and comfort of your attendees, with protection from legal liability as merely a side benefit of holding a well-planned and well-executed event.
4. On the other hand, even a questionably enforceable waiver still serves as an important reminder to attendees about the risks of an activity and their own responsibility for protecting their safety and well-being. Too, a waiver could be a disincentive for would-be litigants to pursue a frivolous case, especially given the likely difficulty in tracing exposure to COVID to any particular activity or point of contact.
If you decide in favor of having a COVID-19 waiver for your upcoming event (or any other type of waiver, if you are planning an activity involving potential hazards for your participants), you are encouraged to contact ASCE’s legal department for assistance..