As we look ahead to a post-COVID world, many are wondering how to make events safe, reduce liability, and implement contractual protections should an emergency arise. This blog 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?
The short answer is yes; however, there are multiple factors to consider.
- For any event, be sure to comply with all local requirements and mandates.
- Although the CDC does not recommend onsite COVID-19 testing at or during an event, it does recommend conducting health checks such as temperature screening and checking for symptoms.
- Recently, with the rise of the Delta and other variants, some events have started requiring proof of vaccinations or negative tests for admission, usually a test taken within 72-hours of the event.
- For those concerned about HIPAA, generally, it does not apply in these circumstances since HIPAA only applies to entities such as healthcare providers and plans that engage in certain electronic transmissions to protect a patient’s health information.
- Should the business consider disclaimers and waivers of liability for events?
Absolutely. Informing attendees of risks and having them sign or acknowledge a disclaimer or waiver reduces your liability exposure. By doing so, the attendee should be deemed to have full knowledge of the risks, which is key to a valid release and waiver; assumed the risk of attending; and thus, releasing the organizer and others from liability if the attendee contracts the coronavirus at the event. With respect to these disclaimers and waivers, here is a summary of best practices:
- Make the language clear and understandable.
- Require ALL attendees to sign, acknowledge, and agree to the disclaimer/waiver or be prohibited from attending the event absence legally-available exemption.
- If your event involves children, have a parent or guardian execute the disclaimer/waiver.
- Remind attendees of the risks and the disclaimer/waiver upon arrival.
- Consider placing signage on site as a reminder.
- 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 nonperformance of contractually required obligations.
- Whether nonperformance 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!