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Are Liability Waivers Part of Our New Normal? Denver Lawyers Weigh in

As businesses open their doors, Coloradans are being asked to sign a lot more waivers. Is this temporary, or will it be one of COVID-19's enduring legacies?

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As businesses across the state reopen, many customers, employees, and employers are faced with new hurdles and regulations. Businesses have increased cleanings and limited the number of people allowed inside. Some storefronts are asking customers to complete waivers or questionnaires, and others are taking customer’s temperatures—all in an effort to provide a safe space and protect themselves from a lawsuit.

For instance, walking into Nurture, a new wellness marketplace in West Highland, customers are asked to complete a questionnaire and sign a waiver at the door. “Have you or anyone you live with had a fever in the last 30 days? Have you or anyone you live with tested positive for COVID-19 in the last 30 days?” asks the questionnaire. The waiver says you understand the inherent coronavirus-related risks of entering the building and release the business and its affiliates from any liability and claims.

Businesses around the Front Range are adopting questionnaires like this. Is it our new normal? According to several Denver-based lawyers, it might be.

To be clear, a questionnaire and liability waiver are not the same thing. A questionnaire screens for any high-risk customers, while the liability waiver helps protect the business from a lawsuit because the customer is waiving the right to sue. And, for context, a liability waiver is not uncommon among some business like fitness studios and gyms—but you’re likely to see many more.

Until business owners get more guidance, there will be “a lot of dispute, confusion, and uncertainty for a while,” says North Capitol Hill-based business and employment attorney Byran Kuhn. He says there are two ways to reduce uncertainty about regulations and legal rights. One, legislatures could modify laws or write new laws that provide more clarity. Two, we can allow the issues to go to court and have the rulings provide guidance.

Until then, there are a lot of unknowns. “It’s an evolving legal environment,” says Andy Contiguglia, owner and president of Baker-based Contiguglia Law Firm.

While most new waivers ask about a customer’s symptoms and if anyone they’ve been around has tested positive for COVID-19 or had a fever in the last 30 days, some waivers also make customers aware of any inherent coronavirus-related risks present when entering the business.

“I think we likely will [see more waivers] because…a waiver can’t hurt you, [the business owner], it can only help you,” says Cory-Merrill-based attorney Rehan Hasan. It depends on the type of business, but Hasan believes most places will err on the side of caution.

Contiguglia agrees that waivers don’t hurt, however, he says waivers don’t protect a business from what they’re already supposed to do, including providing a safe workplace for employees.

As businesses navigate requirements and reopening, Barbara Grandjean, partner at Husch Blackwell, says everyone needs to have an open dialogue and recognize that answers are not “one size fits all.”

The uncertainty around reopening and protecting owners, customers, and employees is part of the still-new legal territory and will likely result in more lawsuits, according to several lawyers. Kuhn says he expects to see a flood of litigation surrounding employee privacy and right to a safe workspace, including whistleblower cases that then resulted in an employee being fired. Hasan says from a legal perspective moving forward “will be real rocky.”

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