COVID-19 Waivers of Liability

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For those of you venturing out to the gym, the hair salon, or even your workplace, you may have been presented with a waiver of liability for your signature. These waivers attempt to limit a business’s liability for damages that may result from a possible exposure to the coronavirus and lead to the risk of contracting COVID-19. Understandably, owners of small businesses that have been shuttered due to the virus are concerned, especially when faced with the possibility of a future lawsuit should someone contract COVID-19 while on their premises. A lawsuit on top of already strained finances is not on the menu for a lot of these enterprises. To date, there have been no judicial opinions relating to the enforceability of these particular waivers. Most liability waivers are used when people participate in high-risk activities, such as sports or recreational activities, where there is a chance of injury. Waivers are governed by the rules of contract law. In instances of gross negligence, such waivers are typically deemed unenforceable. However, in general, liability waivers can be enforceable so long as the party signing the waiver had fair notice, i.e. that the contract or waiver specifically stated the claims to be released and that the waiver language was conspicuous within the contract.

But what would happen if you refuse to sign the waiver? Will you be prohibited from entering the business or going to work? Unfortunately, that could be another risk that the consumer might have to take: sign or be denied entry or service. To help you navigate this confusing path, here are some articles that provide some guidance to help you decide whether you want to go ahead and sign that waiver:

If You’re Asked to Sign a COVID-19 Waiver, Use This Road Map to Help With Your Decision, Consumer Reports.org, July 2, 2020

Can My Employer Ask Me to Sign a COVID-19 Waiver?, Nolo.com, accessed July 29, 2020

What You Should Know Before Signing a COVID-19 Liability Waiver, FindLaw, June 29, 2020

For businesses looking to draft their own liability waiver, here are some articles to check out before embarking on your own:

COVID-19 Liability Waivers: What Businesses Should Know, Law360, June 24, 2020

How Courts May Interpret COVID-19 Waivers of Liability, Law360, May 21, 2020

After the Moratorium: National Eviction Resources and Data

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A provision of the CARES Act which has, so far, protected millions of people from losing their housing, is set to expire on July 25, 2020. Potentially, many residents of Harris County (and the rest of the nation) could be facing eviction. In response to the need for reliable information about housing instability, we’ve posted a number of helpful resources in this blog. In May, we wrote about the eviction moratoria issued at the federal and state levels, and in June, we provided links to information and self-help tools from Texas Law Help and Lone Star Legal Aid for those at risk of losing their homes. Now we are offering a bird’s eye view of eviction across our country, providing links to resources that present both national and state-by-state data.

• As Protections Expire, Millions Of Americans Face Threats Of Eviction – NPR Morning Edition, July 21, 2020 (Audio)

  • 6-minute nutshell interview with Matt Desmond, author of Evicted and founder of the Princeton Eviction Lab

• STOUT interactive eviction tool -- Developed by Stout Risius Ross, LLC (STOUT) with input from National Coalition for a Civil Right to Counsel (NCCRC)

  • Provides access to data on estimated number of tenants experiencing rental shortfalls along with data showing tenant confidence levels in their ability to pay next month’s rent.       

• COVID-19 Housing Policy Scorecard – Princeton Eviction Lab

  • See the list of additional COVID-19 housing resources and tools built by other organizations

• COVID-19 Protections for Homeless Populations -- National Law Center on Homelessness & Poverty

  • See compiled list of COVID-19 Resources on Housing Alternatives

• Eviction Moratorium Maps – Regional Housing Legal Services (RHLS)

  • Presents a graphic visualization of moratoria in effect in each state, at each phase of eviction

• Federal Eviction Moratoriums — National Low Income Housing Coalition

  • Searchable database and map allow some renters to identify if their home is covered by the CARES Act eviction moratoriums

• Just Shelter

  • Identifies organizations that preserve affordable housing, prevent eviction, and reduce family homelessness; Presents personal eviction stories

• The Scarlet E: Unmasking America’s Eviction Crisis – On the Media (Audio)

  • A four-part series on the “eviction epidemic” in this country; Hosted by Brooke Gladstone

In the Interest of the Public Good

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Today’s blog post began as a discussion about the debate surrounding intellectual property protections for the development of a COVID-19 vaccine, but, in the course of reading about the conflict between pro-patent pharmaceutical companies and those who promote public access to the vaccine, the discussion evolved into a reflection on the development of the Internet. We are providing links to some good resources about the controversy around vaccine patent protections at the conclusion of this piece, but the focus of this blog post is actually the development of the world’s greatest vehicle for communication without which modern life is unimaginable – the World Wide Web.

In answering the question, “Who owns the patent to the polio vaccine?,” Jonas Salk famously said that it belongs to the people. “Could you patent the sun?,” he replied.  Tim Berners Lee, the pioneering computer scientist who developed the World Wide Web, might have said the same. His vision was clear – access to the Internet via the World Wide Web should be open and transparent. Creating an egalitarian space free from the influence of private interests was central to his design. Today, this vision is being challenged by private companies who prioritize profit over the public good. Advocates for network neutrality are pushing back. Regulating telecommunications companies and their control of online data streams is necessary, they argue, to ensure equal access to websites, applications, and online content. Similar arguments are being made with respect to the development of a COVID-19 vaccine.

Some say that, in the interest of global public health, the vaccine should belong to the people and made widely available to all who want it. Millions of public dollars are being spent to fund research for a vaccine, so, as the argument goes, any medical discovery made in the pursuit of a vaccine should be shared. Pharmaceutical companies argue otherwise. They stand to profit greatly from the sale of a vaccine for which there will be an overwhelming global demand. Clearly, the interests of the public and those of pharmaceutical companies are greatly at odds…or are they?

Apart from concerns about who should have access to either vaccines or the World Wide Web, there is a debate about what is created and what is discovered. The World Wide Web is clearly a creation, invented by a brilliant mind who shared it with the entire globe. The genesis of vaccines, however, is not as clear. Is a vaccine created or discovered? Teasing out the answer to this question is central to the discussion around patenting a vaccine or giving it away for the benefit of all.

To explore the vaccine dispute further, see links below.

• The History of Vaccines: A Timeline — The College of Physicians of Philadelphia

• Whoever Invents a Coronavirus Vaccine will Control the Patent – and, Importantly, Who Gets to Use It — The Conversation

• A Covid-19 Vaccine Will Need Equitable, Global Distribution — Harvard Business Review

• Coronavirus: Everyone Wins When Patents are Pooled — Nature

• The Covid-19 Vaccine Should Belong to the People — The Nation

• The Way We Produce and Patent Drugs Will Kill COVID-19 Patients — Jacobin

Does Privacy Still Exist Amid Coronavirus?

Amid the news of cities and states reopening, there also have been reports of closures. Some restaurants that had welcomed in-person dining have closed because an employee had tested positive for COVID-19. Bars and pubs, the ultimate watering holes for socializing and catching up with friends, have similarly shut their doors to the public once again. Despite the rising number of positive cases, none of these businesses is required to report any instances of employees who test positive for the disease. For instance, here in Texas, Governor Greg Abbott and the Strike Force to Open Texas have established a list of guidelines and minimum health protocols to which small businesses, such as restaurants, must adhere if they choose to reopen. No public reporting requirements are included in these checklists. Nevertheless, many restaurants throughout Texas and the rest of the country have opted to do so in an effort at transparency and general good business practice, seeking to assure the public that they value their loyalty and business but not at the sake of the health of their employees or their customers.

While restaurants and similarly situated businesses are not required to report COVID cases to the public, employers are still obligated to inform affected employees of their possible exposure to the virus. However, the employer must keep the identity of the infected employee confidential, as called for by the Americans With Disabilities Act (ADA). Although many people associate the ADA with prohibiting discrimination against individuals with disabilities in the workplace, the ADA also has privacy provisions that require employers covered by the ADA to keep all information about an employee’s illness confidential. In the case of COVID-19, employers are permitted to screen employees entering the workplace and may inquire about any symptoms identified by the CDC or public health officials associated with the disease. Such questions are deemed appropriate because of the severe health threat that the disease poses. Any information ascertained from the screening, though, must be kept confidential and stored in a file that is separate from the employee’s personnel file. Despite this confidentiality, employers are able to disclose the name of an infected employee to a public health agency.

Another law that protects individuals from public disclosure of health-related information is the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Under HIPAA, certain covered entities, typically healthcare providers and health plan insurers, cannot disclose protected health information without authorization from the individual. Nevertheless, there are situations when such information can be disclosed without prior consent for national priority purposes, including public health activities. According to a bulletin issued in March, the Secretary of the Department of Health and Human Services issued a limited waiver of certain sanctions and penalties associated with noncompliance with HIPAA’s Privacy Rule. However, even with the waiver, covered entities, such as hospitals, are able to share patient information with a public health authority and persons at risk. Disclosure of such information to the media or persons not associated with the patient’s care requires written authorization. One of the more recent high-profile cases alleging a potential HIPAA violation involved the disclosure of a positive COVID-19 test result for Dallas Cowboys star running back Ezekiel Elliott. Elliott took to Twitter, questioning whether such disclosure was a violation of HIPAA’s Privacy Rule. Maybe, maybe not. Remember that only healthcare professionals and other specified covered entities are held to the rules set out in HIPAA. In Elliot’s case, the media’s disclosure of the test results was not itself a violation of HIPAA, but the initial disclosure very well might have been.

Yes, even amid a global pandemic, privacy laws are still in place to protect individuals from the public disclosure of any health-related information. These laws present a challenge for businesses because employers are required to balance the protection of an infected employee’s privacy rights with the health and welfare of the possibly affected employees. Employers who still have questions can consult the CDC’s website, where it is has prepared some guidance for businesses and employers.

Your Guacamole Has a Dark Side

Don’t let anyone tell you different. Texans love their guacamole. Recipes are touted as the “best guacamole in Texas.” The quality of Mexican restaurants are judged on the basis of their guacamole. Even though the 78th Legislature in 2003 declared tortilla chips and salsa to be the state snack, guacamole reigns supreme in many dining circles. Of course, guacamole is not a Lone Star State creation, but I imagine that Texas would love to lay claim to it.

Guacamole traces its roots to the Aztecs, who inhabited a region in South Central Mexico from around 1300 to 1521. They mashed up avocados and spices into a mixture called āhuacamolli, literally “avocado sauce” in Nahuatl, the language used by the Aztecs. (The avocado itself, though, has quite a long history, going back to the Cenozoic era, where it was fodder for prehistoric creatures.) The ahuacatl or alligator pear, as the avocado was commonly called, caught the attention of Spaniards in the 16th century, who then brought these fruits back to Europe. Avocados first made their appearance in the United States in the mid-19th century. Farmers in California in the 1900s changed the name, believing that neither of the names, ahuacatl or alligator pear, were palatable for North American tastes. (Ahuacatl, incidentally, means “testicle” in Nahuatl, so the change was probably for the best.)

Whether it was the name change or the buttery texture of the fruit, avocado consumption in the United States has continued to increase steadily in the past two decades. According to the Economic Research Service of the U.S. Department of Agriculture, “[p]er capita consumption of avocados has tripled since 2001 to 8 pounds per person in 2018.” California is the largest producer in the United States while Mexico is the largest importer with about 89% of the market share.

Unfortunately, this cool and creamy fruit and the delicious dip for which it is the main ingredient have a darker side, thanks to the drug cartels that are extorting avocado farmers in Mexico. Recognizing the value of this simple crop and the multi-billion dollar industry of which it is part, drug cartels first dipped their hand into the trade by offering protection to the farmers, asking for the payment of a tax in return. Services ceased, but money was still demanded. Some of the methods used by the cartels to gain control of land rife with avocado trees and the income derived from its production include informal “ownership,” monthly protection payments, and stolen produce. Failure to comply with demands, moreover, could result in kidnapping, torture, and even death, thus setting up a bloody battle between growers and the cartels. This violence has prompted many restaurant owners and consumers to boycott these so-called “blood avocados,” an approach not espoused by all because of the negative effect it will have on the workers who rely upon avocado production to put food on their tables and roofs over their heads. Boycotts, the argument goes, punish the victim, not the extorter.

Mexico is not the only nation in which its avocado crops attract criminals. For the past four years, avocados in New Zealand have fallen victim to thievery. One grower reportedly had about 70% of his orchard stolen. It is of such concern that the New Zealand avocado industry has issued recommendations and guidance to both growers and consumers to protect fruit from theft and to recognize fruit that had been stolen.

All of the criminal activity surrounding the avocado-growing industry coupled with consumer demand for the tasty, yet healthy superfood have caused avocado prices to skyrocket. Unfortunately, there is no easy solution to this growing problem, but it certainly gives us guacamole lovers food for thought.