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If New Jersey or Congress fail to grant some sort of liability protections for businesses reopening during the coronavirus pandemic, employers may consider asking their customers not to sue them by getting them to agree to advance liability waivers. Before going down that road, however, employers should know that the level of protection such waivers offer is largely unknown at this time.

During an NJBIA webinar yesterday, attorney Edward J. Fanning of McCarter & English indicated that liability waivers for COVID-19 have not been tested in courts in New Jersey. Until then, there is no way to know if such waivers will really protect your business from lawsuits.

Liability waivers ask customers to acknowledge the dangers inherent in a particular activity and waive their right to sue the business should they get hurt doing it. Until now, liability waivers were associated with activities with a relatively high risk of injury—skiing, trampolines, even the gym.

In the age of coronavirus, people are rethinking what high risk means, since merely being out in public can expose a person to coronavirus.

“Is going to a restaurant high risk?” Fanning asked. “Restauranteurs and other business owners are asking, ‘Can I require customers to sign those types of waivers?’” Disney World, for instance, is asking customers to agree to assume the risk of contracting COVID-19.

“We’re still early in this, at least as it relates to litigation that is already beginning to flow out of this pandemic,” Fanning said.

There’s also the process of asking customers to agree to waivers. It’s relatively easy to include one on, say, online ticket sales or in a contract for gym membership. Restaurants and stores are another matter.

“The kind of businesses that you just show up and walk in, it’s very difficult to implement, as a practical matter, some type of requirement that people agree to a waiver,” Fanning said. “Some businesses might try it through signage, posting if you come on premise you agree to be bound by this. I think those types of attempts are much less likely to be successful… ”

Businesses that decide to try using liability waivers should talk to their attorneys about what needs to be in them. Even in areas where waivers are enforceable, Fanning said, there are clear standards about what they have to say and how conspicuously they have to be presented.

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