Risk Management Practices for Waivers of Liability and Posting Notices During COVID-19
Hello, TAM community!
As we all grapple with the new challenges brought on by the pandemic, I thought that providing information about waivers of liability and posting notices may be helpful. To bring you this information, I teamed up with one of our in-house attorneys, Andrea M. Palmer, JD, Higginbotham’s Director of Coverage and Litigation. Please note that this is not legal advice, and you should discuss whether waivers, notices, or other measures are appropriate with your legal counsel.
As many museums have begun to re-open in various formats, it’s a good time to consider how to proactively address the possibility of a stakeholder contracting, or alleging to have contracted, COVID-19 at your museum. There are three distinct perspectives to consider – employees, volunteers, and visitors.
In Texas, you cannot have an employee prospectively waive liability against you as their employer for injury, sickness, or death. Employers have legal obligations to their employees that generally cannot be waived. The better practice is risk management: make sure to incorporate policies on social distancing, mask wearing, etc. into your policies/procedures. Furthermore, it is crucial to enforce these policies.
If your volunteers sign waivers already, it’s worth considering adding COVID-19 language, waiving the museum’s liability if volunteers believe they have contracted the virus while on premises. As with the employees, it’s also important to enforce the most up-to-date CDC guidelines such as social distancing, hand washing, etc.
Requiring visitors to sign a waiver is often better protection than posting signs alone. However, most museums prefer not to require visitors to sign a waiver due to the PR optics. While posting notices is important, it can be argued that the purpose of posting a notice is to make people aware of unknown risks. However, the general public at this point in time, is keenly aware of the potential for contracting COVID-19. This may make posting notices less important than if the risk was unknown. None the less, it is still a risk management best practice to post signs outlining rules about wearing masks, social distancing, and that visitors accept any liability, including if they contract COVID-19.
Please don’t hesitate to reach out if you have questions or if we can provide you additional information about this topic.