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Legal Expert: Don’t sign COVID-19 liability waivers

As school districts and universities grapple with the risks of reopening in the fall, many are asking students and staff to waive their right to sue in the event that they contract the virus. But according to experts, they aren’t enforceable.

Legal Expert: Don’t sign COVID-19 liability waivers
[Photo: Andranik Hakobyan/iStock]

As schools across the country announce their reopening plans, many officials have said that they want students, faculty, and staff to sign COVID-19 liability waivers, legal documents waiving their right to sue the school in the event that they contract the virus.

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For example, Point Park University in Pittsburgh is requiring all students to sign a COVID-19 waiver.

In June, the University of Memphis required all athletes returning to campus for practice to agree to not hold the school liable for any Coronavirus-related illness or death.

Ohio State University did the same to their athletes, and implied they will ask the same of returning students, staff and faculty.

The trend has hit primary and secondary schools too. In Berkeley, South Carolina, parents who registered their children for face-to-face fall classes found this clause buried in the online registration system: “I understand and agree that this release includes my claims based on the actions, omissions, or negligence of the district, its employees, agents, and representatives, whether a COVID-19 infection occurs before, during, or after participation in any school-related activities.”

In Florida, the Volusia County school district sent out COVID-19 liability waivers to students and coaches. After widespread condemnation, they claimed the waivers were “inadvertently” sent.

When the Tennessee Education Association saw the Florida waiver, they warned teachers not to sign anything similar.

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And in Las Vegas, some parents are betting that one Las Vegas school district has plans to issue waivers after a high school’s official Twitter account reminded student athletes to bring along a signed waiver to practice. School officials say they haven’t yet discussed if all students will be required to sign one in the fall.

On Tuesday, the University of New Hampshire gave students until Friday to sign a form that includes liability language, leaving many to wonder why there’s such a rush, given that the semester doesn’t start until August 31.

Republicans have fueled the idea that schools need legal protection against potential lawsuits. An outline example of their proposal for the upcoming coronavirus relief package includes a list of legal liability protections for schools, colleges, and businesses, according to CBS News.

For the most part, parents, students, teachers, and staff have been outraged by these requests: 350 people tied to St. Xavier University, which is requiring a waiver, wrote a letter, demanding the school remove the requirement.

But everyone should just take a breath: COVID-19 liability waivers are completely unnecessary and would never stand up in court. Nonetheless, experts advise people not to sign a waiver if presented with one.

While primary and secondary schools are still figuring out their fall plans, many universities have cemented their plans. Over half of the colleges in this country are planning on having in-person classes this fall.

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Thirty percent are preparing for a hybrid model of face-to-face and online classes, according to the Chronicle of Higher Education.

And while 9% of universities, like Harvard, have announced their classes will be online, many are still allowing a certain number of students to live on campus in dorms.

The fact that students will be congregating, face-to-face, in some form, likely led some schools to create COVID-19 liability waivers.

Why COVID-19 liability waivers won’t hold up

Unfortunately, the schools that are doing this are acting on some bad legal advice, which has led to some bad PR.

According to Jennifer McGlone, the Chief Legal Council at Court Buddy, these liability waivers would never protect a school if they were sued. “They are contracts of adhesion,” she says. “If all students are forced to sign them, students can argue that it’s not informed consent and it’s unfair to enforce them.”

McGlone says judges won’t view COVID-19 waivers the same way they see other liability waivers, like the ones people sign before doing something potentially risky. Take skiing, for example. “When you rent skis, you sign something that says the ski rental company won’t be liable if you hurt yourself on the slope,” she says. “But it depends how you hurt yourself. It’s one thing if you have an accident, and another if you have defective ski.”

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She describes such waivers as “take it or leave it” contracts.

“You don’t get to negotiate these waivers,” she says. “And that’s fair in certain contexts but not in others. If you’re doing something high risk, maybe it’s fair. But if it’s something that’s not inherently dangerous—like getting an education—that is considered a contract of adhesion, and judges don’t honor those.”

McGlone says universities don’t need people to sign waivers if they’re following state and local COVID-19 protocols. “If they are acting reasonably, and taking reasonable measures to ensure safety, that’s their defense in court,” she says. “They don’t need waivers.”

She can imagine a few scenarios in which universities may want students to sign liability waivers. “If students are going to do something that assumes a high level of risk, like if medical students travel to a hotbed of illness or education students teach the kids of first responders, then maybe it’s reasonable to ask for waiver,” she says.

But in all other scenarios, McGlone urges people not to sign a COVID-19 liability waiver. “You’re paying schools to educate you, exercise reasonable care, and make informed decisions,” she says. “They need to stand behind the decisions they make.”

And when it comes to universities, McGlone urges people to remember who really holds all the power. “At the end of the day, they want your tuition money,” she says. “If they want you to sign something, tell them you won’t pay.”

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Patty Lamberti is an editorial consultant for Courtbuddy.com, an online platform whose goal is to connect low-to-middle income Americans with legal help. She is also the program director for Multimedia Journalism at Loyola University Chicago. 

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