Q: In your March 2 column, "Advice on advising clients on coronavirus," you wrote that "you have no legal duty to advise about coronavirus," and in your March 16 column, "Travelers might have little recourse to sue," you quoted a legal authority that states, "there generally is no obligation to warn of a hazard that should be appreciated by persons whose intelligence and experience are within the normal range." Although I am sure that you are correct, I still would like to cover myself by having clients sign a disclaimer stating that I am not responsible if they get Covid-19 on a cruise or other trip. What would such a document provide, and where can I get one?
A: You really do not need a separate disclaimer for Covid-19. Instead, it should be part of a document that disclaims liability for all acts or omissions of suppliers, the general risks of travel, government regulations and acts of God.
However, if you would like such a disclaimer anyway, here's what it should cover:
• First, you have no special knowledge of health hazards such as the risk of contracting Covid-19, either during the client's travel or at the client's destination. For the latest travel health information, the client should review the State Department's website at travel.state.gov and the CDC's information at www.cdc.gov/travel.
• Second, you have no responsibility for Covid-19-related requirements that travel suppliers and governments may impose from time to time, such as health affidavit forms, health screenings prior to departure or upon arrival, face coverings or quarantines. For the latest Covid-19 government travel regulations, the client should review IATA's website at www.iatatravelcentre.com. For the latest travel supplier requirements, check the supplier's homepage.
• Third, you have no special knowledge of suppliers' financial condition and no liability for supplier defaults or for recommending future travel credits with suppliers that may be out of business by the time the client tries to use the credits.
• Fourth, if requested, you will assist with obtaining any refunds due or rebooking trips using future credits, but you will charge a nonrefundable fee for such services.
• Fifth, you strongly recommend trip cancellation and medical insurance, but some policies do not protect against cancellation due to pandemics or supplier defaults, so the client must read the policy. You recommend "cancel for any reason" coverage, which costs more.
The foregoing clauses do not require the client's signature, an "I Agree" click on your website or the like, although it is preferable to have such provable manifestations of agreement. However, if you want a release (i.e., an agreement not to sue you), you not only need a signature but you also need to make the wording prominent such as in all upper-case letters. You must use the word "release," and it must be part of an agreement. You should call the document "Covid-19 Disclaimer and Release Agreement" or the like.
You can find a model Covid-19 disclaimer and release agreement at www.pestronk.com/resources, along with a more general disclaimer.