Do We Need COVID-19 Releases for Our Next Event?

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Tom Wolfe, Managing Partner of Moore Brewer Wolfe Jones Tyler & North.

As state and local health authorities start relaxing restrictions on group gatherings that were put in place during the COVID-19 pandemic, credit unions and CUSOs will likely want to start sponsoring events, conferences and meetings for their members and clients.  Of course, top on the sponsor’s list will be taking steps to accommodate social distancing, wearing masks, disinfecting surfaces, providing notices and reminders throughout the activity consistent with government protocols and overall ensuring compliance with the Center for Disease Control (CDC) and state and local orders, guidelines and protocols in an effort to prevent the spread of COVID-19 during the activity.  Along with these best (or required) practices, the common question being asked by sponsors of events, conferences, meetings and the like is whether participants should be required to sign a release of any claims (i.e., not sue) the sponsor if the participant contracts COVID-19 at the event.  

Premises owners and service operators regularly require participants to sign a release before participating in an activity that poses a physical risk to the participant.  For instance, you would not be able to enter a trampoline park or go bungee jumping without signing a release that contains comprehensive language which basically states that you understand the risk of the activity includes physical injury and possibly death; that you knowingly and voluntarily enter into the activity and that you and your estate agree not to sue the owner or operator if you are injured or you die.  If the correct and sufficient verbiage as required under the applicable state law is used in these releases, then they will generally be enforceable and protect the parties being released from liability. 

At this point it is unknown if a liability release would be enforceable as it related to a pandemic.  It is possible that some state courts would find such releases against public policy.  Other state courts might only enforce the release if certain language is included or alternatives to being present at the activity are available or if participating in the activity is entirely voluntary.  Further, it is not known at present to what extent a sponsor or provider of an activity could even be held liable to participant during a pandemic particularly if all government orders and health protocols are followed during the activity.  However, since some state courts might hold sponsors and providers of activities liable for the spread of contagious diseases such as COVID-19 during a pandemic, it would be prudent to attempt to avoid liability by requiring participants sign a release .  Again, the applicable state law (typically where the activity occurs) will determine if the release is enforceable and whether liability can even be avoided at all.  So while we cannot, for purposes of this article, give you specific language for a release pertaining to COVID-19, we can give you some guidelines to follow based on general legal principles for releases.  

  1. The names of all parties being released need to be stated. For example, if the release is intended to cover both the premises owner (e.g., hotel), a sponsor, and different company providing the activity, all three need to be named.
  2. Include language that the release is being given in consideration of registration and in-person attendance or participation at the activity.
  3. Include comprehensive language describing the risk that the participant is knowingly and voluntarily assuming. To effectively do this, the assumption of risk language should be prominent and include, at a minimum:

    • the fact that the CDC has declared a pandemic for COVID-19;
    • that there is no treatment, cure, or vaccine available;
    • that the method of spread and contracting COVID-19 is currently unknown or not certain;
    • that sponsors, service providers, and premises owners cannot keep their customers, guests or participants from spreading and contracting COVID-19; and
    • specifically list the consequences of exposure to COVID-19 as well as that there might be unknown consequences.
  4. Include the participant’s agreement not to attend the activity if the participant has any symptoms of, or has been exposed to, COVID-19 and to follow all recommended or required precautions (such masking, social distancing, washing hands and using sanitizer) including those imposed by the sponsor or provider (such as a temperature check before the person can participate).
  5. The language needs to expressly state that the participant covenants not to sue the parties being released.
  6. Typically negligence claims need to be expressly stated as being released. Typically reckless or intentional acts cannot be released.
  7. The release must clearly state that the release is given knowingly and voluntarily and that the releasing party waives rights to bring a lawsuit.
  8. The matter being released (i.e., exposure to infection diseases including COVID-19) must be clearly stated.
  9. If there is an alternative forum for attending the event (remote or virtual forum), state that the alternative forum is available but the participant chose to attend the event in-person.
  10. Naming the state law that governs the release is recommended. Typically, the state law would be the state where the activity is being held; however, the state law covering the enforceability of releases needs to be reviewed to determine if it is favorable to the released parties and if not another state law with some connection to the activity may need to be chosen.

The points above are intended to serve as a guide only and should not be considered an exhaustive list of all the points to be covered in a release.  One request we often see is for a short version of a release.  The best chance for a release to be enforceable is for it to be comprehensive which necessitates a long version.  Further, the release should be conspicuous and a separate document prominently labeled as a “RELEASE OF CLAIMS RELATING TO COVID-19” or similar language so that there will be no question that the releasing party understood and knew what was being signed and being released.

Article by Tom Wolfe, Managing Partner of Moore Brewer Wolfe Jones Tyler & North.

 
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