Are COVID-19 Waivers Enforceable Under Pennsylvania Law?
As hair salons, gyms, and many other businesses attempt to reopen in the midst of the COVID-19 Pandemic, an increasingly common sign of the times is the use of a “COVID Waiver.” While some of these waivers simply ask customers to affirm that they are healthy and haven’t been exhibiting COVID-19 symptoms, others ask customers to release the business in question from “any and all liability for unintentional exposure or harm due to COVID-19.”
The question that many are left wondering is whether such a waiver is actually enforceable under Pennsylvania law to bar claims. The short answer is yes, if a claim of ordinary negligence was to be leveled at a business using such a waiver where the business is involved in a recreational or other non-essential activity. In Pennsylvania, an exculpatory clause, like those used in covid waivers, is valid where three conditions are met: (1) the clause must not contravene public policy; (2) the contract must be between persons relating entirely to their own private affairs; and (3) each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010). Pennsylvania courts have directed that exculpatory clauses must clearly state that “a person is being relieved of liability for his own acts of negligence,” and waivers that release businesses from “any and all liability” are sufficient to express the parties’ intention to bar ordinary negligence claims. See Feleccia v. Lackawanna Coll., 215 A.3d 3, 17 (Pa. 2019). See also Topp Copy Prod., Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993). In the context of recreational activities, Pennsylvania courts have held that exculpatory clauses do not amount to contracts of adhesion because “the signer is under no compulsion, economic or otherwise, to participate, much less sign the exculpatory agreement because it does not relate to essential services, but merely governs a voluntary reactional activity.” Chepkevich, 2 A.3d at 1191. As such, for businesses who are engaged in recreational or non-essential activities, like gyms, hair salons, and restaurants with dining-in options, who take the proper safety and cleaning precautions (i.e. those provided by the CDC, such as requiring masks and maintaining social distancing) to avoid unintentional COVID-19 exposure, covid waivers should be enforceable to bar claims for unintentional exposure premised on ordinary negligence.
Turning to whether such a waiver would be enforceable to bar a claim of ordinary negligence if used by a business engaged in an essential service or activity, the answer is likely no. With a voluntary recreational activity, by refusing to sign a covid waiver, a customer simply cannot partake in that particular activity at that particular business. However, where a customer is forced to choose between signing a covid waiver to patronize a business providing essential services or refusing to sign the waiver, and thus being unable to receive the service, the covid waiver may amount to a contract of adhesion. See Chepkevich, 2 A.3d at 1191. A question courts will ultimately face in a claim where a covid waiver was signed is what qualifies as an essential service or business.
With respect to claims sounding in gross negligence and recklessness, whether a business provides essential services is irrelevant, because exculpatory clauses, like those in covid waivers, are not valid to preclude liability for reckless and grossly negligent conduct as such waivers would violate public policy. See Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190, 1203 (Pa. 2012); See also Feleccia v. Lackawanna Coll., 215 A.3d 3, 21 (Pa. 2019) As such, even if a business were to require a customer to sign a covid waiver to release the business from “any and all liability for unintentional exposure or harm due to COVID-19,” the waiver would not bar claims alleging that a customer contracted COVID-19 as a result of the business’s reckless or grossly negligent conduct. Unlike negligence, recklessness requires conscious action or inaction which creates a substantial risk of harm to others. Tayar, 47 A.3d at 1201. Gross negligence involves something more than ordinary negligence and is often described as “want of even scant care” and an “extreme departure” from ordinary care. Feleccia, 215 A.3d at 20.
So, for example, if a business were to ask customers to sign a covid waiver, while ignoring the current CDC guidelines regarding safe openings (i.e., allowing too many customers in an indoor setting, not requiring social distancing, or not requiring masks indoors) and a customer were to sue alleging COVID-19 exposure as a result, a waiver would likely be unenforceable to bar such a claim.
Ultimately, only time will tell how courts will treat covid waivers. While there may not be any lawsuits involving such waivers pending just yet, we are likely to see them in the future.