Does a Liability Waiver Protect You if a Child Gets COVID-19?
Caring for children in your family child care home has always been a risky business. Children can get injured, your property can be damaged and parents can sue you.
With the arrival of COVID-19, the risks of children or parents getting sick from the virus has greatly increased.
Liability Waivers
Some child care providers try to reduce their liability risk by putting a waiver in their contract. The language of a liability waiver might read: “Child care provider is not responsible for medical or other expenses resulting from a child or parent enrolled in my program who contracts COVID-19.”
If you are thinking that such a liability waiver will prevent a parent from successfully suing you – you are wrong. It won’t.
Liability waivers, such as the one described above, are not enforceable in court. This is because your clients can’t give up their right to sue you. Even the children in your care can sue you years later (usually up to age 18 or 21).
As a general rule, your program is responsible for any injury or accident suffered by a child or parent in your program.
As a general rule, however, your program is not responsible for any contagious illness suffered by a child, parent or staff in your program.
Negligence
When are you liable when someone contracts a contagious illness? The answer is when there is negligence on your part.
Negligence occurs when your program:
Has a duty to keep someone safe, and
You breach that duty, and
Your breach causes the harm, and
A person suffers from the harm
This would be extremely difficult for a parent to prove!
Your program clearly has a duty to keep everyone safe. But as long as you follow best practices regarding safety measures, you haven’t breached your duty. Following the Center for Disease Control guidelines probably means you haven’t breached your duty.
Lastly, it may be difficult for a parent to prove where and when their child was infected with the virus. Parents who sue are likely looking to receive money from an insurance policy.
How to protect yourself
The best way to protect yourself from liability risks associated with COVID-19 is to buy adequate business liability insurance. This insurance will pay for a lawyer to defend you if you are sued by a parent whose child becomes sick. You can’t prevent a parent from suing you, but this insurance will let you sleep at night.
You want your insurance policy to cover $1 million per occurrence and $2-3 million aggregate.
Note that most, but not all, liability insurance policies will defend you if you are sued by a parent. However, there are changes coming in the insurance industry because of COVID-19.
Watch out for a new “Communicable Disease Exclusion” endorsement to your policy that says your policy does not apply to communicable diseases. Such an endorsement will say that your policy doesn’t cover ”bodily injury” or “property damage” arising out of the actual or alleged transmission of a communicable disease that might affect staff or ”others that may be infected.”
Such endorsements can be added to your policy at any time. Watch for them or ask your insurance agent if your policy has this new endorsement. If so, you might want to search for other insurance policies that don’t have this endorsement.
Summary
Remember, unless you are negligent, it is highly unlikely that you will be liable if a child or parent in your program contracts COVID-19. It will be extremely difficult for a parent to prove that you were negligent as long as you follow best practices to keep everyone safe.
Liability waivers won’t reduce the risk of a parent lawsuit, because parents can always sue if they want and a liability waiver won’t protect you.
Business liability insurance will defend you against a parent lawsuit as long as it doesn’t have a Communicable Disease Exclusion.
Thanks to Elizabeth Downs of New England Insurance Services, Inc. for help with this article.
Tom Copeland - www.tomcopelandblog.com
Image credit: https://insurance.delaware.gov/covid-19-insurance-faq/
