Submission Date:
Question:
I understand that the libraries need a disclaimer stating that the library is not responsible should a visitor or patron become ill with COVID-19. Is this true, and if so, do you have suggestions on wording for this disclaimer?
Thank you
Answer:
I appreciate this question, because it gives me a chance to make an important clarification:
As they prepare to re-open and re-welcome the public for summer 2020, libraries and other chartered entities DO NOT need “disclaimers”[1] to combat alleged responsibility for employee and patron cases of COVID-19. Instead, they need:
- a WRITTEN SAFETY PLAN (customized to their own operations);
- SIGNAGE and other documentation to enforce the Plan; and
- Clear and consistent ENFORCEMENT.
Why is that? Because limiting liability for the transmission of disease is not the same as limiting liability for riding a roller coaster.
Liability based on infection/illness is based on either 1) the intentional act of deliberately spreading infection (for instance, someone with COVID-19 deliberately spitting on someone); or 2) the negligent act of not doing what you were reasonably supposed to do, and thus causing a heightened risk of harm (for instance, someone mistakenly using the wrong product to clean a high-traffic surface).
When it comes to a person allegedly getting COVID at a library, no disclaimer will reduce liability for either type of action. What is needed, instead, is to show that the library has taken all reasonable steps to protect the safety of employees and the public. That is the key to limiting liability.
This can only be done via a Safety Plan based on guidance from NYSDOH, OSHA and the CDC. Since a Plan is only good if the planners follow it, signage[2] promoting adherence to the Plan, through consistent and well-documented enforcement, is also critical.
I am emphasizing a written Safety Plan not only because the State is requiring them, but because in New York, disclaimers, waivers, and “At Your Own Risk” notices are only effective under precise circumstances.
For instance, an insurance carrier can refuse coverage based on a properly worded disclaimer. A sky-diving company can avoid liability for a customer’s heart attack with a waiver. But the insurance disclaimer still won’t void the liability of the insured, and the waiver won’t work if the damage is caused by a sky-diving instructor’s willful action. The enforceability of such documents depends on the circumstances.
What DOES guard against liability for transmission of disease is showing that a library 1) identified appropriate safety practices confirmed by a recognized authority; 2) uniformly and consistently enforced those practices. In that approach, signage alerting people to the risk of transmission (and requiring adherence to rules to minimize it), is part of that “uniform and consistent” enforcement.
Which brings me to the hard truth I have to emphasize:
If your library can’t 1) identify appropriate safety practices confirmed by a recognized authority as reducing transmission of COVID-19; and can’t 2) uniformly and consistently enforce those practices, your library should not operate. No waiver or legal document will protect it if basic safety practices are not identified and enforced.
Now, all that said, as part of its “consistent and uniform enforcement” of safety practices, a library could decide to ask each patron to review and sign a document like this:
The ABC library is now open for [insert limited services]. To ensure consistent use of appropriate safety practices, please review and agree to the following practices before entering, which will apply until the board determines otherwise:
I agree to wear a mask at all times in the library; if I am medically unable to wear a mask, I will call the library at [##########] to arrange reasonable accommodations.
I will sanitize my hands prior to entry at the station provided by the library.
I will avoid touching my face and mask while in the library's premises.
I will abide by any other safety-related requests by library staff.
I will [insert your library’s specific requirements, as stated in the Safety Plan].
I understand that these practices are currently the rules of the library and they are being enforced both for my safety and that of the public as currently advised by the Center for Disease Control.
Signed: ________________________
This type of signed “acknowledgement” is one way to show that people have been notified that these are unusual times in the library, and that entering the premises may bring more than the usual risk. That said, this approach is not an “acceptance of risk” document, disclaimer, or liability waiver. For the reasons stated above, those approaches really aren’t what’s needed for the simple resumption of library activity. What is needed is a Safety Plan.
Of course, if your library decides that aside from resuming some modified operations, it would like to host some inherently hazardous activities (riding a mechanical bull,[3] digging a community garden with heavy equipment, printing Jarts on the 3-D printer) a waiver is a good idea. But for resumption of activities while the country is still fighting COVID-19, your Safety Plan is the key.
Thanks for a great question.
[1] In New York, a “disclaimer” is a formal written document or policy clause used by an insurance company to deny coverage for liability. As an example, see §3420 of the New York Insurance Law.
[2] By “signage,” I mean any documentation in the library, or on the Internet, that encourages Safety Plan compliance.
[3] I had to draft a waiver for a mechanical bull once. Sometimes being a lawyer is fun!
