While caring for children often comes with risks and uncertainty, things are different right now and it is important to know all you can about how to protect your business. With COVID-19, times are uncertain and information changes, sometimes on a daily basis. And that includes knowing what to do if the worst happens and a child gets sick at your childcare center. Does a liability waiver protect you? Is this something that you may fall under your center’s liability? Here is what you should know in order to make informed decisions at your business.
Does a Liability Waiver Protect You?
It is common for childcare centers to include a liability waiver as part of necessary paperwork with new students. While this is a good idea in theory, it is not something that protects the daycare or childcare center from all liability. According to Find Law:
But there are provisions that are quite scary, like those disclaiming any liability for injuries that occur while the kid is in the day care center’s care. Parents sign these because they have to, even if they are a kind of bluff. A day care center cannot waive liability for injury or illness resulting from its negligence and parents cannot waive a child’s right to sue. Most courts invalidate these clauses when they are presented as a defense to a negligence claim against a day care center for fear that recognizing them would encourage negligence.
What this means is that while it does often decrease some of the risk, it is not a foolproof document. For instance, some might include language similar to this:
The childcare center and provider(s) are not responsible for medical care or expenses resulting from a child enrolled at the center or their immediate family.
Why is this not enforceable? For one thing, a signer cannot give up their right to sue and this means it is not a valid contract when it comes to the justice system. In fact, daycare providers can be sued just like anyone can – even with a similar signed contract.
If all of this sounds disheartening, there is good news. While you are responsible for your students and any accident or injury they may incur at your facility, you are not responsible for contagious disease. And this includes a member of your staff, a child in your childcare center, or a child’s parent(s).
Circumstances Considered Liable
While the good news about not being responsible for contagious disease is valid, there are circumstances where you may be held liable. These are instances where the childcare center is negligent.
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
According to Cornell Law School:
If the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting injury, then the party with the burden of taking precautions will have some amount of liability.
What this means for you is that you must follow protocols to keep your staff, children, and parents safe. This means following the Center for Disease Control guidelines.
For instance, if your childcare center knowingly had an active employee with symptoms of COVID-19 yet you allowed them to work. Or you were not taking due diligence in ensuring the safety of your staff and children by not disinfecting the facility. The CDC has plenty of information on taking care of children in a daycare setting.
These include things such as:
- Washing hands
- Practicing social distancing
- Including screening protocols
- Wearing face coverings when possible (not recommended for children under 2-years-old)
- Disinfecting areas
- Supervising children using hand sanitizer
- Covering up sneezes and coughs
- Requiring sick staff members or children to remain home
- Establishing protocols in case someone becomes sick during your care
Those are just examples of what to do to ensure that everyone is safer from COVID-19 and the entire guidelines should be read. It is also important to have open communication with the children’s caregivers. Make sure that parents or guardians know your safety protocols and that the staff is fully aware of what is expected of them.
Another thing to keep in mind when keeping your childcare center open or reopening is to have a plan in place in case of absent staff members. If a staff member is sick or has family members who are sick then you may find yourself shorthanded unless you have a backup plan. This can include things like reaching out to substitute staff members or coordinating efforts with alternate child care programs in your area.
Protecting Your Business
As mentioned, anyone can sue. Except there are a few obstacles a plaintiff will have if they plan to like proving where the child or parent contracted COVID-19. This is why it is imperative to have all of the safeguards in place. As long as you show that you are following all of the guidelines then a parent or guardian will have a harder time winning a settlement against you.
Now that doesn’t mean that it is not a good idea to buy adequate business liability insurance. In fact, that is a safeguard that you should already have in place. Yet, it is a good idea to take the time to look over your policy and see if anything regarding this type of situation is covered. If you are unsure or need to add additional protection, simply call your insurance company and talk with them about what is best for your childcare center.
Watch for Insurance Endorsements
One crucial thing to look for is what is known as a “Communicable Disease Exclusion” endorsement. this is fairly new endorsement and it typically will state that your policy does not cover property damage or bodily injury from alleged or actual transmission of a communicable disease that may affect others that may be infect or staff members. These endorsements can be included to your policy without warning and at any time. It is important to find out if yours does and if so, it is in your best interest to search for coverage that does not include this endorsement. Otherwise, you have no liability protection if a parent or guardian decides to sue.
Again, it may be difficult for them to win but a lawsuit can take time and money that you may not be able to afford.
Of course, if your childcare center is not maintaining proper due diligence when it comes to COVID-19, then that is an entirely different issue. In this case, the plaintiff may have a solid case.
Parents Should Be In-The-Know
One thing to be aware of that helps make your parents and guardians feel safer about their children being at a childcare center is best described by USA Today:
Ideally, where child care providers reopen, there will have been at least two weeks of declining or plateauing hospitalizations and deaths, Connor said. There will be enough testing to identify new cases. And there will be enough people in the public health network who are trained in contact tracing: tracking where infected people have been and notifying people who might have been exposed.
We’ve gone over the fact that a liability waiver is not protection from a lawsuit when it comes to COVID-19. Yet, keeping up with guidelines and performing due diligence helps ensure that you have more protection from someone wanting to sue. Not only that, but adding extra liability insurance and making sure it does not have the exclusion mentioned is important too. All of these things combined helps give you peace of mind when it comes to running your childcare center during the pandemic.
COVID-19 is an unprecedented event for childcare centers. Its long-term financial and operational impact remains to be seen but keeping your clients and staff safe is at the forefront right now. As long as you are doing all that you can to keep everyone from contracting COVID-19, then you have the right mindset for great success and fewer problems with parents and guardians.
Looking to speak with an expert who can help guide your financials? Book an appointment here to speak with the Honest Buck team.