Editor’s note: The lawyers quoted in this article are not providing legal advice. If you are seeking legal advice, consult with a professional.
When you begin planning in-person meetings again, the last thing you want is for an attendee to suddenly become ill and blame you for it. In the post-COVID-19 world, you must protect yourself not only physically, but also legally.
The coronavirus has forced the creation of new policies and placed emphasis on legal clauses that were once just the fine print. And numerous new procedures are being implemented by hotels, such as Marriott International and Hilton Hotels, that planners and attendees must henceforth abide by, such as six-foot distancing, wearing protective equipment and temperature checks.
The World Health Organization’s planning guide for mass gatherings lists what to do before, during and after the event takes place, which could significantly reduce the chances of one of your attendees getting sick.
There will likely be attendees who do not fully abide by all the new rules, so being protected on all fronts is a must, legal experts warn.
Protection vs. Privacy
It’s a thin line between being proactive in protecting your attendees and overstepping privacy or personal boundaries. Ty Sheaks, partner at McCathern, PLLC, says knowing where to draw this line is a bit tricky and depends on laws in place where the event is occurring.
“There’s a balance between privacy concerns for folks attending versus your [need to protect yourself] as planner, as well as ensuring adherence to whatever current health and safety recommendations are in place from local, state, federal governments and related agencies,” Sheaks says.
If an attendee gets sick at your event (or shortly thereafter), what do you do? Sheaks says it comes down to how well you’ve covered yourself contractually. “Short of whatever liability [or] business immunity legislation may pass at the state or federal level, the best way to try to address this is to cover yourself contractually on the front end and hire good lawyers on the back end. Just be able to ‘tell your story’ for mitigation of any potential liability,” he says.
Meeting sponsors are also worried about being held liable if an attendee comes down with the virus, according to John S. Foster, CHME, an attorney with Foster, Jensen & Gulley, which represents event sponsors and meeting professionals.
He says meeting sponsors are now requiring attendees to sign a form acknowledging the risks involved in attending public gatherings, thus waiving their rights to hold anyone liable should they become infected. Foster says if attendees refuse to sign the waiver, they must be barred from attending.
“In our litigious society…this new waiver is a must,” he says.
Do You Have to Have a Force Majeure Clause?
Force majeure has become a hot legal topic since the onset of the pandemic. You should know how to write this clause to protect your meeting from the next pandemic or other disruption. But there also exist common law principles that are similar to the force majeure clause, and they come under different guises, such as “impracticability,” “impossibility,” “frustration of contract,” or “frustration of purpose,” depending what state you’re meeting in. Much like force majeure, these common law principles can render a contract null and void when something happens that is outside of either party’s control.
For example, there are three requirements for “frustration of contract” to apply:
- Event must cause contract to be impossible to execute or make it radically different from when the contract was signed
- Event that caused the change cannot be due to either party
- Contract doesn’t provide what will happen as a result of the occurrence of the event
“Most of this stuff is probably already in current contracts, but it doesn’t hurt to take a look or have counsel review agreements planners make with venues [or] sites to ensure any such issues are addressed,” Sheaks says.