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The Legal Paige Blog - Do you STILL need your Covid Clause?

Do You STILL Need Your Covid Clause?

It's been almost three years since March 2020 when the world shut down for the first time because of the Covid-19 pandemic. The Legal Paige knows the last three years have been *extra* rough on entrepreneurs, and during this time we’ve seen entrepreneurs rise up and protect themselves financially and legally through their contracts.

But now, three years later, it looks like national shutdowns, and event restrictions are seemingly over (knock-on-wood). So the question many business owners are asking is whether they STILL need Covid waivers, Covid rescheduling clauses, and Covid acknowledgments within their client contracts. TLP is here to help you answer these questions! So let's get into it.

 

What's the Tea on Covid-19?

The main thing to remember at this point in time (August 2022) is that the Covid-19 virus is still an issue, people are still getting sick through variants, and the CDC still has quarantine measures in place for those that test positive.

Thus, by no means is Covid-19 obsolete. However, we are now in a place where many people are vaccinated, stores and businesses are fully open, events are happening when they are scheduled to happen, and the scary part of the pandemic seems to be behind us. So, in the same thought process that things are shifting worldwide, you may also want to take another look at your contracts and Covid-19 policies your business has going forward to make sure you are keeping up with the times. 

 

1. Covid -19 Postponement & Cancellation Clauses are a Thing of the Past!

Back at the beginning of the pandemic, many of you probably added our Covid-19 Postponement & Cancellation Clause to your contract. That is 100% fine and was absolutely appropriate to use during the period of March-December 2020 when new clients were trying to book with you and wanted a little pressure release on rescheduling in case of issues with hosting their wedding/event due to Covid. If you have clients that signed contracts including this clause, then you as the business owner will have to stick to that policy moving forward because the agreement was already solidified.

BUT, as Covid-19 has become more of a permanent thing in today’s world, you are now posed with having to make some hard business rules for NOT allowing rescheduling and cancellations. TLP is seeing more and more business owners in the wedding and event industry not allowing clients to reschedule or cancel anymore due to Covid-19 for new bookings.

This is because if clients are choosing to plan an event right now, they are accepting the risk that Covid poses and choose voluntarily to proceed with those planning risks. Not to mention, your business is willing to block out dates on your calendar and say no to other clients; thus, you cannot afford to allow unending reschedules or cancellations forever. Ultimately, it makes sense for you to no longer give this “pressure release valve” or “open-ended rescheduling opportunity” to your clients. This is what TLP recommends at this point in the foreseeable future!

With this being said, you can run your business the way you want and have as generous of a rescheduling policy as you want. Maybe you are medically high risk and would rather not have clients chance it—say if they contracted Covid or were close contacts of Covid—and instead give them one complimentary reschedule to reduce your risk. Or, maybe you just don't like the idea of charging a rescheduling fee and are more aligned with that business mindset. If this sounds like you, then keep the Covid-19 Postponement and Rescheduling Clause. However, if you do allow for a rescheduling make sure you have an expiration for that new date and ONLY ALLOW one complimentary reschedule. Typically TLP recommends that the new event date occurs within 6-12 months of the original date (side note: now in 2022 with Covid being foreseeable and predictable, allowing a shorter rescheduling period such as 6 months is warranted). Just be aware that if you decide to have a free rescheduling policy, clients may (and likely, WILL) take advantage of that. Clients are notorious for canceling at the last minute and wanting the world when doing so.

 

2. An Acknowledgment of Covid 19 and No Rescheduling Clause is the WAY TO GO moving forward!

The Acknowledge of Covid-19 and No Rescheduling Clause is a resource that TLP definitely recommends staying in your contracts. This clause will help communicate to your clients that you DON’T allow rescheduling due to Covid and what your specific business policies are surrounding changing up a date due to fear of Covid (ahem… rescheduling fees should apply!).

It also outlines to your clients that you will continue to perform your services for their wedding/event as long as you are legally able to do so (aka as long as there isn’t a stay-at-home order in place, you contract Covid, or you have been deemed a “close contact” with someone who tested positive and is supposed to quarantine for the health and safety of others).

Thus, as long as you can operate your business and do what you are contracted to do for your clients, you will continue to do so and maintain the utmost safety and health precautions. Furthermore, if your clients contract Covid, you will want to explain in this type of clause what type of policy is in place should that occur. Usually, here, it would be similar to if you tested positive and a one-time reschedule would occur. This would quite literally be the only exception to your strict rescheduling fee policy. All to say, since Covid-19 is still around it makes sense to have your clients continue to acknowledge what will happen if you or they test positive a few days before or the week of the event.

 

3. Should you still send out Covid-19 Liability Waivers?

A waiver and release of liability form requires your clients to sign off on their knowledge of the risk of Covid, that they assume that risk, and that your business cannot be held liable under any circumstances for health effects or damages due to Covid. It additionally has them agree to waive any and all potential rights to sue you under these circumstances.

This waiver was used heavily back in 2020 as an additional way to notify your clients of the risk associated with performing services at this time due to the unknown nature of contracting Covid-19 and had them release you from liability associated with that risk. Many service professionals used this waiver back at the beginning of the pandemic as a simple one-page document for clients to sign in addition to their main service agreement.

If you are an event service provider or photographer/videographer, it is really up to you whether you want your clients to continue to sign this release. Now that there are vaccines, free tests, and free masks, a client has lots of means to protect themselves from the virus, and… unless they have been living under a rock for the last two years… they know that anyone can get Covid from anywhere at any time. For this reason, TLP feels comfortable, that legally, a Release of Liability Waiver (i.e. a “Covid Waiver”) is not necessary for every client to sign.

With that being said you can definitely still require clients to sign it. If you feel more comfortable having that extra level of assurance, then by all means keep it and have clients sign (e.g. a makeup artist may want to keep this waiver in place since they are essentially 3 inches from a client’s face with sometimes no mask protection). However, it is NOT legally necessary at this point since Covid is so widespread, well-known, and foreseeable.

Also, if you are a travel advisor/agent you should still need a waiver and release of liability in your contract. Booking travel—especially international travel—is still being hindered by Covid-19 and most people still need to be vaccinated and/or have a negative Covid test result to travel. So, it's a must moving forward to have this language in your contract or in a separate waiver for travel clients to sign. We at TLP do not expect this to change for travel advisors/agents for a few years.

 

4. Don’t forget: No Matter What You Do, ALWAYS Have Core Protection Clauses in Your Contract!

No matter what contract you have, or whether Covid-19 is still a concern, you will still need certain clauses to protect yourself in the event of an unforeseen event such as injuries, or other Acts of God (think here hurricanes/wildfires/tornados), voluntary cancellations and rescheduling situations, unsafe working conditions, extreme inclement weather, verbal or sexual harassment, etc.

TLP always suggests that while, of course, YOU should be protected within your contract, you have two-sided contracts that additionally grant your clients rights and responsibilities under the contract.

  • Protection clauses are usually two-sided clauses because they should ensure your clients also feel comfortable signing since there is language protecting them from non-performance or future payments due to unforeseeable, unprotectable events.

  • Protection clauses also help your clients understand what is acceptable such as harassment behavior from them or their guests, minor inclement weather versus extreme inclement weather, and how unpredictable tornados differ from Covid-19.

  • Protection Clauses put everything out in the open about your expectations from the start of your client relationship.

This is why having the right protection clauses in your contract is crucial. TLP recommends the following Protection Clauses to be included in your contract:

  • Cancellation Clause,

  • Rescheduling Clause,

  • Inclement Weather Clause,

  • Safe Working Environment Clause,

  • Clients' Responsibility to Secure Insurance Clause,

  • Indemnification Clause,

  • Limitation of Liability Clause,

  • Force Majeure Clause, and

  • Cancellation of Services by Company Clause.

You should be looking at your business from a bird's eye view and asking yourself, do I have in place a plan, A, B, C, D, E so that I am ready for any type of unforeseeable, unpredictable situation? Be ready to answer questions from your clients about crazy weather, severe injuries, who should be getting insurance, pandemics, cancellations, and your rescheduling policy.

To help you make sure that your contract is covered, TLP has a FREE CHECKLIST for all the protection clauses! You can print this checklist out and you can check off to make sure all these protection clauses are in your contract.

 

TLP’s Take

Protecting yourself and your business is crucial! It has been a long three years since Covid-19 appeared and clients will still use whatever excuse they can to get out of rescheduling and cancelation policies.

This is why it is so important to adapt your policies to protect yourself and your assets e as the rest of the world adapts to this new normal. Covid-19 is here to stay but that doesn't mean you should be losing money or compromising your policies.

Make sure you have your Acknowledgment of Covid 19 and No Rescheduling Covid Clause in your contract!

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