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Mini-cast 87: Business Waivers and Liability

Bret Keisling looks at the pros and cons and of limiting coronavirus-related business liability through waiver requirements and legislation.


Mini-cast 87 Transcript

Announcer: 00:03 Welcome to The ESOP Mini-cast, a great way to wrap up the week.

Bret Keisling: 00:13 Hello, my friends. Thank you for listening. My name is Bret Keisling and as it says on my business cards, I'm a passionate advocate for employee ownership. As businesses across the country move to reopen and restart our economy, an important issue has come up that affects businesses, whether they're employee owned or not. A number of businesses and other entities have begun to insist that customers, visitors, and employees sign waivers that seek to protect businesses from lawsuits in the event the coronavirus is spread through the business.

Bret Keisling: 00:48 There are a number of reasons why members of the business and legal community support the use of waivers. If a business is operating in good faith and adhering to all CDC, state, and local guidelines and regulations, then the risk of infection should be passed to those who knowingly visit the businesses.

Bret Keisling: 01:07 Currently, the waivers seem to be used primarily by small businesses, such as hair salons and gyms, where social distancing is very difficult to maintain. So the argument goes that if businesses have done everything they're supposed to do, the people using the businesses should take responsibility for their own actions.

Bret Keisling: 01:27 At the same time, congressional leaders are debating the pros and cons of passing legislation that would limit business liability arising from coronavirus outbreaks. A strong argument for why national action is required is that absent of federal law, all fifty states will end up with different standards of liability and it's not hard to envision that coronavirus-related litigation will clog state and local courts all over the country. Organizations such as the United States Chamber of Commerce support, limiting liability provided, again, that businesses follow all of the guidelines and regulations in their respective jurisdictions.

Bret Keisling: 02:08 Business liability waivers are by no means a new concept and chances are, whether you realize it or not, you've probably waived your rights against businesses many times. For example, anyone who's ever been to a sporting event likely received a ticket with a lot of fine print written on it. The fine print includes a waiver if a fan is injured at a game. If you go to a baseball game, you acknowledge that it's possible, and perhaps likely, that a baseball is going to fly into the stands and if a fan isn't careful, they could be struck and seriously injured. In this context, a waiver makes perfect sense, but it's important to note the obligations and responsibilities on the part of the ball clubs and stadium owners to minimize the potential for injury. That's why protective netting is placed around home plate and at various other strategic points in the stadium. In this example, the baseball team is taking all of the prudent and appropriate steps to protect the fans and the fans acknowledge that despite these protections, there's still an inherent risk to being in the stadium.

Bret Keisling: 03:12 It's worth noting that the liability waiver for sporting events is not open-ended. For example, if a concrete step in the stadium was missing and a fan fell and was injured, the ticket waiver probably doesn't apply. Similarly, if a player suddenly ran into the stands and for whatever reason, pummeled a fan that also would be outside the limits of the liability waiver.

Bret Keisling: 03:35 Businesses should take all practical steps to minimize harm to employees, customers, and other stakeholders. I also believe that when possible businesses should have limits on liability, when they've taken such steps. The arguments that I've heard in support of the waivers and reducing business liability will not just protect the businesses that really are doing their best. I'm concerned that limits on liability will allow businesses who are more interested in profits to cut corners and act with impunity.

Bret Keisling: 04:05 There are also a lot of businesses, perhaps the vast majority of businesses that fall in the middle. They want to do the right thing. They're confused by all of the conflicting reports. And they also recognize that under current guidelines, there's only so much they can do. I'm recording this in central Pennsylvania, in a county that has recently turned green, allowing its businesses to reopen CDC and state guidelines, encourage, and in some situations require, masks. Many businesses that have reopened have signs on the door in big, bold letters saying that masks are required while in the store. Setting aside for a moment those who have a medical condition that prevents them from wearing a mask, all too often, I've come across people who just seem to refuse to wear masks just because they can.

Bret Keisling: 04:55 You've probably seen news reports where retail clerks or restaurant workers have been assaulted for trying to enforce the rule about wearing masks. I understand that the businesses are placed in a horrible position of not wanting to turn away business and not wanting to escalate an incident every time someone chooses not to wear a mask, but for those who try to follow all of the appropriate guidelines, and I'm one of them, it strikes me as unfair if I were asked to sign a waiver, giving up my rights in the event of a coronavirus outbreak while businesses allow people on the premises who could well be infecting others while not taking any precautions.

Bret Keisling: 05:34 Finally, I think one aspect of the business waivers is absolutely horrendous. Apparently in some jurisdictions, businesses can insist on their employees signing these waivers, giving up their rights, and if the employee refuses to sign, they can be terminated and ineligible to receive unemployment compensation. This to me is extremely disturbing that employees -- and let's be honest, we're probably not talking about high ranking and highly compensated employees, we're talking about the rank and file. For someone to sign away legal rights when the alternative is termination and financial hardship is unconscionable. On its face, there's no more horrible way for a business to tell its employees that they don't matter than by issuing an ultimatum like this.

Bret Keisling: 06:22 Everyone wants the economy to reopen and everyone is anxious to figure out when we'll get to a new normal and what that will mean. To the businesses and employees who are doing their best to protect themselves and their business, my heart is with you in these very challenging times. But in my view, giving businesses what could be viewed as a free pass is a short term fix to what could be a catastrophic event.

Bret Keisling: 06:46 As always. I know that there are different sides to every issue and whether you agree or disagree, reach out, we'd love to know what you think. Thank you very much for listening. Take care of yourself and those around you. This is Brett Keisling. Have a good day.

Bitsy McCann:07:01 We'd love to hear from you! To contact us, find us on Facebook at KEISOP, LLC and on Twitter @ESOPPodcast. To reach Bret, with one "T", email, on LinkedIn at Bret Keisling, and most actively on Twitter at @EO_Bret. Again, that's one "T". This podcast has been produced by The KEISOP Group, technical assistance provided by Third Circle, Inc. and BitsyPlus Design. Original music composed by Max Keisling, archival podcast material edited and produced by Brian Keisling, and I'm Bitsy McCann.

Standard Disclaimer: The views expressed herein are my own and don't represent those of my own firms or the organizations to which I belong. Nothing in the podcast should be construed as guidance or advice of any kind in any field and the fact that I mentioned an organizational website or an advocate or a company on a podcast does not reflect an endorsement, but if you've heard your name or your group's name mentioned on this podcast, I'd love to have you come on and talk about it yourself.

A note on the transcript: This transcript was produced by Temi, an automated transcription service. While it has been reviewed by The ESOP Podcast, we can not guarantee the accuracy of the transcription. Please refer to the original audio when citing sources.


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