COVID-19 is still here, and opinions are split regarding how long it will stay with us. However, after nearly 2 years in which the world has been in “pandemic mode”, some sectors are starting to return to normal, or creating the new “normal”.
As we look ahead to a post-COVID world, some of the main challenges in the area of risk management are how to make events safe, reduce liability, and implement legal and contractual safeguards in the event of a crisis or emergency. This article highlights some frequently asked questions when preparing to hold an in-person event.
Can a business require vaccinations, proof of vaccinations, or health checks as part of an event?
In short the answer is “yes”. However, keep in mind that there are various considerations which need to be addressed:
- Events need to comply with local and federal/governmental requirements.
- Although the authorities do not recommend onsite testing for COVID-19 for events, the recommendation is to conduct other checks such as temperature screening, symptomatic participants, etc.
- Recently, with the rise of variants like Delta and the recent Omicron, various events have started to condition participation on proof of vaccinations or test results, usually a test taken up to 72-hours prior to the event.
- HIPAA guidelines are usually relevant for these cases,
Should disclaimers and waivers of liability for events be used by the organizers?
Definitely. Business can significantly reduce their liability and exposure by Informing attendees of risks and having them sign waivers. By signing a waiver or receiving information, participants will be deemed as (i) having full knowledge of the risks, which is paramount to a valid waiver and release; (ii) assumed the risk of attending; and (iii) thus, releasing the organizer and others from liability if the participant is infected with COVID-19 during the event. Disclaimers and waivers should follow these guidelines:
- Clear and understandable language.
- Require ALL participants to read and sign the disclaimer/waiver or be prohibited from attending the event (except in cases of legally-available exemption).
- In the case of minors, ensure a parent or guardian executes the disclaimer/waiver and not the minors themselves.
- Remind participants of the risks and the disclaimer/waiver upon arrival.
What about contractual force majeure provisions?
Force majeure provisions relieve the parties from some risk if performance is hindered, delayed, or prevented because of the occurrence of certain events the parties could not have anticipated or controlled. Before the COVID-19 pandemic, very few force majeure provisions directly referenced a pandemic or public health crisis, but, in the post-COVID-19 world, that has drastically changed. As you are entering into new contracts, it is imperative to evaluate whether your force majeure provision covers what happens under these or similar circumstances that are now known to exist; otherwise, your force majeure provision may not apply. When drafting a force majeure provision, consider the following factors:
- The triggering event (e.g., pandemic) is expressly identified in the contract excusing performance – language matters.
- There must be a connection between the triggering event (e.g., pandemic) and the non-performance of contractually required obligations.
- Whether non-performance caused by the triggering event was unforeseeable vs. foreseeable event:
- If a foreseeable event, unless the clause specifically references it, the contracting parties will be deemed to have assumed the risk of the occurrence of the event.
- For example, the 2020 pandemic vs. the 2008 economic downturn:
- an economic downturn is a foreseeable event;
- most will argue that the pandemic was an unforeseen event when it first occurred in 2020; today, however, it is now a foreseeable event.
- Performance of contractual obligations is rendered impracticable, illegal, or impossible due to the triggering event.
Takeaways – Best Practice for Any Event
- Make sure you are complying with all local requirements and mandates. These requirements and mandates change rapidly, even daily, so it is critical to work closely with everyone involved in your event, including the venue, and on-location staff.
- Everyone involved in the event needs to be prepared for the unknown.
- Review your contracts and prepare proper release waivers!