Should our association require all attendees to agree to a liability release and waiver (“waiver”) as a condition of attendance, assuming the risk of attendance and agreeing not to hold our association liable if the attendee contracts the novel coronavirus at the event?
If an association believes it can get most of its prospective attendees to agree to such a waiver, it cannot hurt the association from a legal risk management perspective, and may well help it, to require such waivers. That being said, waivers are regularly challenged and nullified by courts for a variety of reasons; as such, they can virtually never be viewed as a complete liability shield and should never be relied on as such. Most courts, for example, will not enforce a waiver if it finds that the plaintiff was harmed by gross negligence. If the association does end up utilizing attendee waivers, consider adding a provision to the form whereby attendees affirmatively agree to engage in certain health-and-safety-beneficial conduct while attending the event (e.g., wearing a mask at all times in public areas, engaging in appropriate social distancing, not venturing off-site to risky environments (e.g., crowded bars), and not attending the event if the attendee is ill or has had recent exposure to a COVID-19 case). It goes without saying, but waivers are no substitute for the association – and the event venues – undertaking the necessary health and safety measures.
Please select this link to read the complete blog post from Jeffrey Tenenbaum, Esq.