Considerations For Liability and Waivers During Coronavirus Recovery

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Chip:

All right, let's get started. Welcome to today's webinar, liability and waiver considerations during coronavirus recovery, which hopefully is beginning to happen soon for everyone, but that remains to be seen still, but we're going to be talking today about how to develop your own COVID-19 mitigation plan, as well as several other related topics, from waivers to employee obligations and financial protection going forward, and balancing all of these efforts while trying to keep your business afloat. Before we get started, just a couple of pointers for everybody listening in. In your meeting controls found somewhere on your screen, likely at the bottom of the video you're seeing now, you do have controls that allow you to chat and and also have a Q&A section. The Q&A section should send a question directly to us, the panelists.

We have already received hundreds of questions from all of you through the registration page, and we're hoping that the agenda that we've planned today is already incorporating answers to many of those questions, but certainly as we go through, if you feel the need to chime in or if you felt like a question didn't get answered, certainly ask it and we'll do our best to try to answer it within the flow of things, and if not, then we'll pick up afterwards. So one little disclaimer before we get going. This presentation is intended for informational purposes only, and RESMARK, WaiverSign, or the presenters make no representation that the contents and the ideas expressed here today should be taken as legal advice. Always check with your own legal counsel. This is only used for informational purposes today and should not be relied on as legal counsel. So with that I would like to welcome Brandon Lake, CEO of WaiverSign and RESMARK who will be introducing our panelists today and helping us through this discussion. So Brandon, I will pass it over to you.

Brandon Lake:

Thanks, Chip. We are really excited about this. I was pretty overwhelmed by the response of just registrations. I think this is a really important topic for so many businesses right now and I'm super grateful to Leah Corrigan and Chun Wright who are joining us today to help walk us through this. Just to give you a little background, Leah is joining us today from Jackson Hole. She's an attorney and risk management consultant, and she founded the Recreation Law Center where she now works with recreation companies throughout the United States. So welcome Leah.

Leah Corrigan:

Hi.

Brandon Lake:

And Chun is actually joining us from Washington, DC, and she's worked across several industries for years. She now runs her own law firm and continues to work with companies from various industries, but with an additional focus on travel related businesses. So welcome Chun.

Chun T. Wright:

Hello, everyone. Thank you Brandon.

Brandon Lake:

Yeah. Again, I want to thank Leah and Chun for being with us today. I know times are really different right now. We're all joining you from our homes. I had to laugh the other day when we were on a call and Leah literally I think locked herself in her closet because it was the only quiet refuge should good find at the time with her kids being in school at home and everything, and so it looks like you found a little quieter place to meet today, and that's great. Before we get into our first topic, let me just set the stage for who we have joining us today. So we actually have hundreds of businesses from all over. Most of them are from the recreation tour and activity space, but we also have several spas, hatchet throwing companies, yoga and fitness studios, and gyms. Really just a variety of companies that offer some sort of experience to their clients.

And most of them, I assume, their doors are closed today, and we're all anxious to reopen our businesses, and what we want to make sure when we do that, we're protecting ourselves, our employees, and our communities, and our guests when we do reopen. So that's what today is about. We're going to cover a lot of the questions, again, like Chip mentioned that have come in during registration. Also, some other important topics that Leah and Chun feel are very important for companies to think about right now. So our first topic here is going to be about creating your own COVID-19 mitigation and operations plan, and I know this is something that many businesses are actually being required to submit to local government agencies or health departments to even open their doors. If it's not, I still think it's a critical step for all of us to take as we consider reopening in the coming weeks, I hope.

What To Consider While Making A COVID-19 Operation Plan

Brandon Lake:

So let's just walk through the ... there's a few points here that I'm actually going to ask Leah to help cover for us, and some of these are a lot of the questions that come up as someone sits down to put together a COVID-19 operation plan. We think about things like social distancing protocols, potential issues that may cause. We're not all set up in our businesses to deal with that. What kind of equipment do we need to start thinking about? Masks, gloves, is that going to be part of what we do? Screening of employees and guests, is that something we should plan on? What are the risks if we do? And so forth, or if we don't. Increased sanitation protocols, food service, staff training on symptoms. How do you recognize this? Methods of transmission, protocols for when we see a certain thing, how do we act? Communicating those protocols to our guests.

And what happens if you have a sick guest or an employee? What's the isolation and treatment process? So there is a lot to think about when you get into this, and I think a lot of companies find that challenging. There's so much to think about. We're not necessarily health experts, per se in our businesses, but want to protect ourselves financially, and we want our employees to be healthy, we want our guests to be healthy, and want to do it right. So Leah, can you walk us through this a little bit?

Leah Corrigan:

Yes, happy to. So first, let me talk a little bit about how I come at these issues and hopefully give you a little comfort level that you don't have to be a lawyer to figure this stuff out. Probably everyone in the audience here as well equipped to come up with this operations plan, and I explain that like this. In my former life, I used to be a river guide. I, as a river guide, would be able to come up with a COVID operations plan, not even being a lawyer. It's common sense stuff. You all mitigate risk every day in your operations. This is just a new element of what you already know how to do. So my first point is don't be intimidated by this. This is a pretty straightforward process, and I'm going to try to walk you through the basics of it, but take some notes and then dive in.

This is not an incredibly complicated subject once you break it down analytically. So the other point I want to make is this. This is not ... what I'm talking about now is not about how to mitigate hazard for your employees. That's a different legal issue and we're going to cover that later. So what I'm talking about now is how do you mitigate the risk of your guests getting sick and how do you limit your liability in the event that your guest does get sick? Because we all know we can't eliminate the risk of someone contracting COVID. That's not realistic.

So the big picture point is try to avoid sickening your customers, which you want to do anyway because that's obviously very bad for business, and two, to limit liability. Before we dive into what the elements of a plan should look like, this is the big picture framework you need to think about. Limiting liability involves figuring out how to exercise reasonable care. That's the legal idea you need to have in your brain. How can I exercise reasonable care under the circumstances to try to mitigate the risk of my guests contracting this disease at my business? So the legal issue is what's reasonable under the circumstances? I'm setting up the framework for you, how to look at this in an outlined form. Rule number one, and if you don't remember anything else I say, please remember this. You need to follow all CDC guidelines, state law, local law, and for those of you operating on public lands, permitting agency regulations. There's a lot of resources out there, but your local health department website probably is going to link you to all of those in one place.

So that is rule number one. If you don't follow those guidelines, you're setting yourself up for trouble. So that's point one. Rule number two, and is more of a really, really good idea, not necessarily a rule. Communicate with others in your industry that are doing what you're doing. So if you're operating in the Grand Canyon as a river outfitter, talk to all the other outfitters and figure out what other folks are doing. If you're a yoga studio in New York City, talk to the other yoga studios and spas in your area and try to get on the same page. The reason for that is what is reasonable is going to be by comparison to what other people in similar circumstances are doing. So communication is key here with your peers. Can you jump back to that screen just for a second, Brandon, so I can refresh everybody's recall?

Okay, so this is what I'm calling the elements of a COVID-19 operations plan, and we're calling it COVID-19, because coronavirus is just so yesterday. Now we just call it COVID. Okay, so these are the things that you're going to want to think about no matter what business you're in. I don't think I need to go through these in detail. That's going to take up a little time, but I'll hit the high points here. Social distancing, thinking through, in your business, is it possible to maintain six feet of distance between clients and employees? That's going to really depend on what your business looks like. Some people, that's going to be easy. Other folks, that's going to be far more difficult. Looking at required equipment that you're going to require your clients to have. For instance, again, using a river example, if you're shuttling 30 people to a river in a bus, you're not going to be able to maintain social distancing six feet protocols.

So would it be smart to require masks of every person in that shuttle bus in that situation? I think it probably would be. Consider how you might screen your employees and guests. Should you ask them for a statement that when they come on your experience or they come in your door that they are free of symptoms? Should you consider possibly taking the temperatures of people who come in the door? That may seem crazy for, for example, a yoga studio, but if you're doing a 15 day horse packing trip in the Montana wilderness and you're just kind of forehead swipe someone for their temperature, that's going to seem more reasonable.

Carefully consider your food service protocols. That goes without saying, and this one's critically important. You can come up with all the planning in the world and a great operations plan. If you don't train your staff on how to follow that plan, including helping them understand methods of transmission, helping them understand why you're implementing these protocols, you're basically just doing a lot of work for nothing. Consider how you're communicating those protocols to guests, and consider how you are going to isolate and treat someone who's sick, especially for those of you that have multi-day experiences or experiences in places that are not within shooting distance of primary care. So those are the big picture things to consider, and I could talk about this all day, but we have a lot to cover. So if you have questions on that, let me know.

One last point, this I'll call rule number three, and this really is a rule. Do not create a COVID operations plan and then not follow it. That's the worst case scenario. If you're not able to follow the plan you create, don't create one at all, and relatedly, don't shoot for the moon in terms of what you say you're going to do. We all hope that maybe this is going to be a one season situation. The reality is this could be going on for a year or more. So don't create really robust protocols that are going to look really good to your clients, but that will be very difficult to follow and implement over the long term. I think that about covers it. Anything else you think I missed, Brandon?

Brandon Lake:

No, I don't think so. One question that has come up is collection of information. You mentioned if part of our plan is that we're going to take people's temperature, for example, is that something that you would suggest recording as proof that we did collect it? And if we did collect that information, how should it be stored? I think there's some concerns over HIPAA privacy and all of that kind of stuff, or do we have some responsibility that we take on when we do start collecting information like that from our guests?

Leah Corrigan:

Good question. I think ... and this is a little out of the scope of my expertise, but I'm 99% sure that for most of the people in this audience, HIPAA does not apply to your operations. So I don't think ... HIPAA is probably not a big concern for most people here. Do you have an obligation to protect your client's records? Probably, but considering whether someone's temperature is high or low and the risk of that data falling into the wrong hands, I think given the circumstances we're dealing with, that's a kind of low risk issue. So I think should you collect and record it? Probably, if that's practical, but that may not be practical for everybody, especially folks that have high volume operations.

Brandon Lake:

Okay. Some other questions too. I mean I don't know ... if we do ... so someone's asking here if we require masks and other equipment, for example, does that need to be provided by the guest or the business? I'm sure that's a question that's going through a lot of minds. You said if for transportation purposes, maybe we don't have the luxury of having people six feet apart, as you mentioned, which is a reality I think for a lot of businesses, the big question around transportation. Is everyone required to show up with their own mask, for example? I mean obviously these things are in short supply now, and as a business you might have a hard time getting them and the guests may have a hard time getting them, or is it just something that they need to be informed of in advance and it's required to participate? What would you say to that?

Leah Corrigan:

That's a great question. I think that you're going to have to play that by ear. So do you have a legal duty to supply a mask if you tell your clients that they need one to participate? No, I don't. I don't think you do. It may be a good business move, and you don't want to get in a situation where your clients show up, they're required to have a mask, they don't have one, and you have to turn them away after they've already paid for the experience. So I think those are really more business decisions, but I don't think it's mandatory that you provide the required equipment to your guests. When you talk about employees, that's a different issue and we'll cover that.

Brandon Lake:

Okay, and then one last question for you, Leah. If we do end up collecting temperatures, for example, what do we do? I guess the idea is if they're over a certain temperature, we're refusing for them to participate, right?

Leah Corrigan:

Right.

Brandon Lake:

And are there any questions ... this may be more from a health perspective, and this is what's difficult, I think about taking temperatures, is you don't always know what someone's baseline temperature is, and so to say ... someone at 99 might be a fever for them. Maybe they run lower as a normal temperature, and that's something to take into consideration, right?

Leah Corrigan:

Certainly. Certainly it is, and I think you wouldn't want to randomly choose a degree. You would want to ... hi. You would want to pick a temperature in consultation with the healthcare provider from your public health website, but I think to the extent that you need to turn people away in this age we're living in, you will be legally protected if you turn someone away for that reason.

Brandon Lake:

Okay. All right. Excellent. Chun, anything that you would add to that topic before we move on to our next one.

Chun T. Wright:

Sure. Thanks Brandon. Just a few thoughts came to mind. With respect to the travel industry, I will just say that right now with respect to any sort of industry standard or peer standard with respect to what they plan to do with respect to coronavirus and protecting their travelers or their employees ... I mean right now everything is halted. Nobody's going anywhere, but industry members are talking and trying to figure out what they should be doing. I think it's going to be evolving over the next several months depending on government situation. So right now I think standards are being discussed, but they're just not yet concrete, and I think they will be evolving in the coming weeks. With respect to travel also, another complexity is the travel situation, when people are going internationally, harder to control environments, there's more exposure to different risks, and with respect to geographical differences, it's going to be I think quite challenging to navigate.

So point is it's going to be evolving, but there are a number of moving parts here. So it's going to be imperative on everyone to just constantly be up on what's going on at the governmental level, at the local level, at the international level, and the peer level. With respect to privacy, I do spend a lot of time in this area, and I will just say that those are good questions about what can you collect and what you should do with that data. It might be that if you take people's temperatures, you have a standing policy of everybody's under ... everybody has normal temperature, they go forward. We don't as a practice record that information.

So if you can document and explain your processes in a good manner, then that's one way to avoid the actual collection, but be mindful that certain data that you ... health data, even if it doesn't fall within the United States HIPAA laws, that there's the California invasion of privacy act that was just implemented this year. We also have the general data protection act over in the EU. So if you have foreign travelers coming, their data is still protected, and some of this data may fall into sensitive personal information territory. So I would say look at those issues. Don't assume that you're not collecting information that might be protected. So I think privacy is going to be a huge issue in the future with respect to COVID.

Is My Online Release Of Liability Waiver Sufficient Or Do I Need To Update It?

Brandon Lake:

Yeah. Great. Okay, good. Thanks to both of you on that. Let's move into our next topic here. So I want to talk a little bit about managing and communicating risk. This comes in both written and verbal formats, and when we talk about this, this is ... I know there's been a lot of questions about this from our attendees today. A lot of them use some of our software products. We have a lot of companies here who are using an online waiver. Nearly all of them, I think. So a lot of questions on their mind are "Okay, what is the best way to inform and warn participants? Do I need to be adding additional language to my existing waiver or online release of liability? Should I do that to protect my business or is what I already have is sufficient? Do we require a new waiver to be signed? Timing of presenting the new language to our participants?" Leah, you ... Timing of presenting the new language to our participants. Leah, you mentioned something like a statement or something that they're acknowledging just before participation, for example, that they're feeling healthy, or that they've been tested recently, or whatever that might be. So timing of doing something like this that they're signing off on is a question. Or do we even present it at all? And I think, depending on the business, one particular avenue might be the right thing, whereas for someone else, maybe something else is the correct choice. So Chun, if you could take this and walk through these steps with us a little bit of how we should think through this.

Chun T. Wright:

Absolutely. Thanks Brandon. Yes, I think about 50% of the questions that came in related to waivers. I would say the bulk of them related to whether waivers need to be updated to include COVID language. And there were some other questions around online waiver timing and issues like that. This is definitely a super important issue, and one that is going to be very important for the future. Just as an aside, over the last few weeks in dealing with COVID, the big issue has been terms and conditions, cancellation and refund policies, and the finance side of things, which we'll get to a little later. Waivers are going to be front and center probably in the next few weeks, as companies start thinking about getting back into business. For those of you that are operating domestically, you'll be thinking about this a lot sooner and having to deal with it a lot sooner. For those working internationally, it will come probably a little later once our flights start to get back going.

So, all of you all are at different time periods, in terms of thinking about these issues. So, based on the information I have, we have companies that, some that don't have waivers, I think are new to this process or maybe just created one, and aren't super familiar with where waivers fit into the legal system in their risk management plan. Others are very familiar with them. So I thought I would spend just a couple of minutes grounding us in why are we talking about waivers? Where do they fit into the legal system? Because I think that sets us up to talk about how to think about what you should do with your online waiver. So, why are we talking about waivers at all? The reason is, you are all looking to reduce your legal liability and ultimately your financial loss if our participant or guest gets hurt or suffers property damage while engaging in activity, visiting your property, or traveling with you.

That's ultimately the question. You obviously don't want people to get hurt either, so that's the overarching reason. But liability is key. So a waiver is really, at the end of the day, a simple, commonplace, and cost effective way to try to inform and warn customers in an attempt to protect against potential liability claims, ultimately in court. No one wants to get sued in the United States. Both Leah and I have been in courts in the United States, and it is no fun. So waivers are an important tool to avoid that. So, waivers sort of fit into a defense structure in the United States and in other places, Canada and elsewhere. If you were to ever get sued for COVID or something else, somebody gets hurt, you're going to be looking at a set of common defenses. There are more than this, but these are the core ones, and this is where waiver fits in.

So one is contributory negligence or comparative negligence. Depending on what jurisdiction you're in, what state you're in, if a person is responsible for some of their own injuries or harm that they're suing you for, and they contributed to those injuries or harms, your liability could be extinguished, or it could be reduced. Another defense is assumption of risk. Now, if you're ever sued and you can show that someone who was injured knew that he or she was doing something, and they knew about the risk but they participated anyway, that they assumed those risks. If you ever get sued, the person is going to say that they didn't know about the risk and it will be your job to show that they did. And there are a couple of ways to show that. One is through the fact that if you do safety briefings, you can point out you do safety briefings, the person knew about the risk.

Another way is to have a waiver that describes the risk, and you can point to it in black and white to say, "This person knew about the risks, they were very specifically set out in our waiver, and here you go." Those can be very powerful pieces of evidence to show somebody assumed the risk. They knew about it. Now, a release and safety briefings aren't the only way that you can show that somebody knew about the risk. You can point to whatever evidence you want. I think somebody said, "Well, what if we put up a sign with COVID related risk identified?" That can be a piece of evidence to show this person knew about the risk. They knew that there was risk of contracting coronavirus, even if they were at our gym and used the equipment. We do our best to clean, but we're not perfect. We're not infallible. So it's a piece of evidence.

You can point to the fact that there were news briefings every day, and everybody knows that you can contract coronavirus by just walking around and being around other people, it's communicable. But an online release of liability fits into that defense. The real core defense around waivers is, you want to be able to argue that a person waived their right to sue you for any damage or harm through contract. They bargained for what you provide, whether you are a hatchet throwing company or you're a travel company. They paid for those services in exchange for a release that they provided to you, that they wouldn't sue you if something happens while they're participating in your program or they're traveling with you. So it provides a contractual defense.

So it does two things, right? It can show that someone assumed the risk. That's why, in waivers, you see a lot of assumption of risk language. And it can also show that somebody released you from their right to sue. Now, waivers are really powerful, because in most jurisdictions, they are upheld. I'll talk about some caveats shortly, but most states will allow you to bargain for release in exchange for what you are providing. One thing to keep in mind though, if you're operating on National Park Service lands or with the US Forestry Service, they don't allow releases, so you'll just need to work with your council or your team to make sure that whatever documents you have your participant sign complies with those rules and regulations. So the other thing I will say about an online waiver is that it's a great screening tool. So, putting aside the legal defense, if someone is nervous about signing a waiver, investigate that.

It could be that this person is nervous about the trip, they don't like the risk, and you don't necessarily need to spend a lot of time trying to get the sale and get that person comfortable. You can spend some time, but ultimately, if they're nervous and they just won't let go of that nervousness, they may not be the right person for your trip. So look at it as a screening tool to remove the people voluntarily that may not be comfortable with your activities. So, a well drafted release clearly identifies the risks of the activity, there's a clear statement that they waived the specific rights to sue you for physical injury, illness, or bodily harm, and property losses, it's signed, and you want to give your release as far in advance as possible for someone to sign. Under the law, most courts will require that a release be clear and conspicuous and it's not unconscionable, you didn't force somebody to sign a waiver.

The closer that someone signs a waiver to the date of the activity... In some instances, and I'm just generalizing here, I know a lot of people have businesses where people sign up day-of, and they sign a waiver day-of, right before they participate in activity, so it really depends on a case by case situation, but you want to give people as much opportunity to review that waiver. Put copies of your waiver in your physical premises. You might have a situation where people are lined up waiting to sign a waiver, and that's an opportunity for them to have additional time to read your waiver. So, post your waiver. You may want to put it on your website. Be creative and think about where you might be able to give people an opportunity to read the waiver in advance.

So with respect to the components of a waiver, we're going to talk about the COVID language in just a moment, but I think there's some other important pieces of a waiver that you'd want to include. An indemnity agreement, a jurisdiction agreement, those actually came up in the question. Someone asked about whether waivers are subject to a jurisdictional requirement. It's important to put into your contracts, and a waiver is a contract, where you want lawsuits to be brought or disputes to be brought. You can specify. So I'm based in Washington DC, I can say all lawsuits must be brought in Washington DC, and I want Washington DC law to apply. I often see waivers or contracts that don't include this language. The other thing you'll want to include is an indemnity agreement. And this might say something like, "If you cause injury to other participants or third parties and we are sued for it, you're responsible for paying for our damages, our losses, and our attorney's fees and that situation."

So that can be really helpful in a situation where, let's say, somebody has COVID symptoms, and they know it, and they don't share it, and they participate in making other people sick, and you get sued. You may have an opportunity to look to that person and say, "You know what? You have to indemnify us." So, as far as updating a waiver, the fundamental question we've gotten is, "Well, should additional language be added to waivers?" I have to give the caveat that it really depends on your situation. We can't generalize here. Waiver situations come in all sorts of flavors, but I did give some thought to what I've seen, as far as waiver situations, when companies come to me, where they might fall into the spectrum. And depending on where they fall on the spectrum, they may need a tweak their waiver, revamp it, or maybe they don't have one and they need to create it from whole cloth.

Now you might remember what I just said about waivers have to be clear and ambiguous and conspicuous. For this reason, companies are thinking about specifically identifying coronavirus in their waivers. They don't want there to be any question about coronavirus or similar things, other viruses, diseases, and whether the waiver covers them. So there are a lot of discussions about specifically calling out coronavirus. So, I think it's good that we have a lot of questions about that. I would say start by reading your waiver. You may not have looked at it in a while. It may be a really long paragraph of different risk. Read it, and consider whether anything you've listed covers coronavirus, contracting coronavirus, or any of the risk relating to coronavirus.

So, going on to the categories I've identified, one situation could be you don't have a waiver at all. In that situation, you should be thinking about whether to create a waiver. You may have defenses at law, as I mentioned, assumption of risk, contributory liability. If somebody participates in an activity, let's say you're a fitness provider, and they participate and they get other people sick, you don't need a waiver to argue, "Hey, they got somebody else sick." But you don't have to have a waiver to make those legal defenses. If you don't have a waiver, you can create one that specifically calls out coronavirus, illnesses, viruses, and the risk around that. And the waiver will also help you provide evidence to support an assumption of risk defense. You could be in a situation where you have a waiver that covers illnesses and diseases, but you don't specifically mention coronavirus. Well, if you have a waiver that does that, you may not necessarily need to include or want to include coronavirus. Your waiver already covers coronavirus as a general matter.

But you might want to consider specifically covering it. We don't know how a court will review a waiver that just says illnesses, sicknesses are covered. So you might just want to err on the side being more conservative and specifically identifying COVID. You may have an online waiver, but you don't cover COVID, illnesses, disease at all. So there, you may very well want to update your waiver to include COVID there. One of the questions we received is, "What if you're a business where, maybe you're in travel, and customers have paid a deposit and signed a waiver that doesn't include COVID? What do you do? Do you have them sign a new waiver?"

Well you could, but you do run into some vulnerability that a court would say, "Hey, the waiver doesn't apply. They signed up under waiver A. You can't slip in waiver B." But certainly, companies are thinking about doing that. But you might want to think about giving that person a refund if they resist signing. So with respect to language that you can include in waivers, not giving specific language at this moment, but things to think about are the risk of contracting the disease, virus, illness, airborne, food-borne, and communicable illnesses and diseases from third parties, other participants and staff, risks relating to pandemics and epidemics, risks relating to your company's negligence. So let's say you do a pretty good job of cleaning your physical environment, but one day you fall below industry standard. And it's not gross negligence, meaning you didn't just not try to clean up at all. So you'll want to include risks in general, relating to your company's negligence, risks relating to the negligence or intentional acts of other third parties or other participants.

You may want to include things around government actions and quarantine. So damage or loss due to government action, quarantine, border closures, government travel restrictions or warnings, diplomatic or health organization warnings. Just so you know, the World Health Organization is not a government agency, so if you just mention government agency, WHO may not be included. And then you'll want a catch-all category that says that people are waiving their right to, or assuming the risks related to actions, omissions, or conditions outside of your company's control that are not otherwise mentioned. Remember, waivers are not going to protect you from intentional, reckless, or grossly negligent conduct. And we still have to see how courts interpret these. And then finally, I will just say that a waiver is a proactive measure. If you use one, it's a component of the risk management plan. It is not a magic wand that will release you from liability. So it's important and it's effective, but it's not the only thing you should be doing. Thank you Brandon.

How To Enforce Online Waiver Language Regarding Participants That Might Have COVID-19

Brandon Lake:

Yeah, thanks Chun. There's a lot to think about with all of this, on this waiver topic, right? One thing I'll just throw out. As a business, we operate our own tour company, as well, and we've been struggling with this. Unfortunately, our waiver didn't have anything specific enough in it to provide any kind of protection against this particular illness, or illnesses like it in general even. And so we are asking that question that has come up so often, and I see it right here in our chat. Somebody is asking if we do need to send out that additional document if we are doing something that Leah alluded to as well, is having them sign shortly in advance that they're healthy to participate.

We don't know whether testing is going to be available, so to require a test of our participants may be difficult as well, or they say, "Well, I can't get tested, so give me my money back." That puts the business in a difficult spot as well. So is it just signing that they feel healthy? Do people take that opportunity to lie about their conditions? "Yeah, I've been feeling kind of sick lately, actually." And they just don't want to participate. But I would probably say that the same is true, and maybe this is a question for either of you, is if someone's not comfortable participating due to the fact that they may have exposure to this, and we're asking them to sign something, as a business practice, would it be in our best interest to give them a refund if they don't feel comfortable to participate? Oh Leah, you're muted. You can...

Leah Corrigan:

Sorry. I wanted to answer that one because it's so easy and lawyers never get to give one word answers. The answer is you should give their money back. No, don't make them participate. That's assuming a tremendous amount of liability. The other thing I wanted to follow up on with what Chun was saying, it's really easy to get lost in the rabbit hole of waivers. The simplest way to think about it is this. If you're here, you probably have a waiver because you're a WaiverSign and or RESMARK customer. The simplest way for you to think about this is, you have a section in your waiver that covers the defense that Chun talked about, assumption of risk. That's where you list out the inherent risks of your activity and you ask someone to assume those risks. That's a separate defense from an online waiver, it's just in your waiver.

So the place that you would put this language or look for language about illness, disease, airborne transmission of communicable disease, things like that, that's in your inherent risks section. If it's not there, you have a problem. You need to contact your local lawyer, contact someone who is familiar with this area and the recreation space, and figure out how to adapt your waiver to this situation. And that's going to be really critically important, especially in states where an online waiver, defense number two, is not available to you. Then that inherent risk doctrine, assumption of risk doctrine, is one of your best defenses, and your first line of defense. So if you're looking at your waiver thinking, "How do I apply what these lawyers are saying about waivers?" Look at that inherent risk session, see if you think it's covered in the language as a normal person. If it's not, you need to move to step B and talk to a lawyer who understands this stuff.

When Do I Present My Online Waiver Regarding COVID-19

Brandon Lake:

And I guess the other question you might ask, given your circumstances to your legal counsel, might be this idea of timing, and do you present it again, right? Is it a revised document with the new language in it? Is it a separate document that's isolated to this? Is it done shortly before, so they're signing off saying, "I'm healthy. I recognize that at this stage I'm going to expose myself to potentially getting this illness," and there's all of those questions too. We're right in the middle of discussing all of this for our own business and trying to figure out which direction do we go with that. We have a situation where we have people booked all the way through 2020, and sending something out right now to all of them does worry us a little bit. We've considered maybe we do wait until it's a little bit closer, because the anxiety level of everyone right now is much higher than maybe it will be in August. Who knows where things are going. But if we continue on the same track, which hopefully we will, then presenting something like this in August, you may be presenting it to a person who is much less worried than they would be today. I don't know. Those are some of the considerations that are rolling around in our heads as a business too in terms of timing.

Chun T. Wright:

Right. In that situation, I think, Brandon, you've talked about two concepts. One is the waiver idea, and the second one, really, is a representation and warranty by the participant that they're healthy and good to go. It's a related but separate question. So I agree that you want people to make those reps and warranties closer to the time of travel, or maybe someone's traveling or going to participate a year down the road, and you say, "Look, by participating in any of our trips you're representing that you are okay to do that, whether it's COVID, or whether it's, you don't have a heart condition, or you don't have any issues that will cause problems for us." You could, in that situation, if you are debating whether to just wait and ask them in August, you can give people a heads up, and this might be something where this is just general thoughts where it might also serve as assuring people that you're thinking about it, and you're letting them know what your plans are of, as we get closer, we're monitoring the situation. We will be asking everybody to confirm that they don't have the symptoms or something like that. Then in August it's not a big surprise to people.

Brandon Lake:

Sure. That's a good idea. I've seen a lot of companies that are doing a great job at really communicating, over-communicating almost, as to what they're doing, and what they're thinking, and what their policies are. I think participants appreciate that. So that's a great point. Then as you're saying that, would that be a separate statement? Is that something as a representation of warranty, is that something that someone is signing in advance?

Chun T. Wright:

I think this goes to, and I'd be interested, Leah, for your thoughts on that. This is always the question. Some of it's a business decision. Some of it's ideally having people sign everything is great. You get to show exhibit one in court with a signature. Companies don't always want to do that. They don't want to push out more paperwork, or they don't want to deal with signatures, a host of reasons. So options to think about are, yeah, go ahead and have people sign a rep and warranty right before they come. Or you say, "Look, just a reminder, if you have any symptoms we're telling you to stay away. If you show up we're going to take that as your representation."

How To Update You Online Waiver In WaiverSign

Brandon Lake:

Yeah. Okay. No, thank you. I'll just show a couple of examples. I know we do have a lot of clients here who utilize the software just to avoid any confusion as to how you might go about this. Let me just go ahead and show a couple of examples here. These are simply samples. They're not meant to provide any language that you might use in your own documents in any way. But in terms of how you would go through the process. So if you do utilize WaiverSign, you'd be coming in to, say, create or edit your documents, find the individual waivers that you want to edit, and then you can search that as Leah mentioned, and Chun. Do you already have language in there that's protecting? If you do, then you're probably in a great spot. If you don't, and you find yourself in the position we were in, you may need to look at adding something, which would be a good practice not just for this as I'm interpreting your responses. It would be a good practice moving forward. We don't know when something like this may recur. Or other types of illnesses, whether they be airborne, food-borne, waterborne, anything like that.

So you would come in here and you would plug in into that inherent risk section, that additional language. Then during the signing process, this is showing the WaiverSign signing process, which you can see. You can actually take a look at this on waiversign.com. You can walk through that process and see how that shows up and so forth. Very easy to implement once you have the language put together.

If you were to choose to do a separate document, the system can support that as well. You would come in and actually create a new document. If you made the decision to have something in addition signed just prior to participation or something like that, you could create a document like that, and then automate the send out of that document. So you're collecting signatures a certain time just before participation. So hopefully those of you on the call find that helpful as well.

Employee Workplace Obligations And Considerations

Brandon Lake:

So let's move into our next topic guys. This is a big one for a lot of companies, employee workplace obligations and considerations. When we think about this, I know there's a lot of businesses that are concerned about reopening. It's this balance of we need to reopen financially, but what happens if we do and all of our employees simultaneously, a lot of these employees work in close quarters, what if they all simultaneously get sick? What position does that put our business in? But from that day forward for a period of 14 to 20 days, are we not operating? We have to close our doors. How do we deal with that? There's all of these kinds of questions. What are our obligations under OSHA? How do we develop an infectious disease mitigation plan? Do we take the step of employee assumption of risk forms, or is that not necessary? Other statements that we might have for employee. Leah, can you walk us through this topic a little bit?

Leah Corrigan:

Sure, happy to. Again, I'm going to use my favorite word, which is framework, because I think it's really important for people listening to understand the big picture, as Chun walked you through with waivers with this issue. The legal question here is what are your legal duties to your employees? The most basic way to say this is you have a duty to provide a safe workplace. That doesn't mean eliminating all hazards, and any of you that work in the outdoor space, particularly the hatchet throwing folks, you know that you cannot eliminate all hazards for anyone involved in your activity. Your duty is not to eliminate all hazards. Your duty means undergoing a process to identify what the hazards are to your employees and how to mitigate those hazards. That's the framework that you need to be thinking about this as.

That issue of employee safety is governed primarily by OSHA. I'm sure everybody's heard of OSHA, although many of you probably haven't met an inspector. Hopefully you never will. But I think some folks will be in the next couple of years. OSHA requires you to do this. Brandon, do you have that next slide? First, before we get into this, you need to identify whether your employee's risk of exposure to coronavirus is high, medium, or low. I think most of the people on this call are going to have employees in the medium risk category. High risk category, super obvious example is nurses are obviously in a high risk category of contracting coronavirus or being exposed to coronavirus. If you're in a high risk category, you need to contact a lawyer familiar with OSHA. That's a difficult thing. That's beyond the scope of what we're going to be able to talk about here.

For the 99% of you that are here though, that are in the medium risk category, here's what you need to do. First, this OSHA hierarchy slide here is important to think about and understand. A lot of people, when they hear OSHA, or if they know anything about OSHA, they jump immediately to what we call PPE, which is essentially protective personal equipment, PPE, personal protective equipment. So you start thinking I need to protect my employees. I'm going to go and buy masks and gloves. That's the end of the thought process for a lot of people that haven't been exposed to OSHA. That's not the thought process. This a COVID crisis is a perfect teaching tool for what you do need to do with respect to OSHA. This goes to any hazards. So you can apply this knowledge across the board.

First, identify the hazard. We know what we're dealing with here. Can you eliminate the hazard? Can you go to the next slide? Oh, that is the slide. Okay. So first question is, can you eliminate the hazard? No, is probably the answer to that question. So how do you mitigate the risk? Can you apply some administrative controls to mitigate that risk? For instance, if you're running a tour company that has a zip line operation, and all of your people usually come to your site and check in at the front desk, can you create a situation where they're electronically checking in? Or can you create a situation where you have a check-in station that is outside instead of inside? So thinking of administrative ways to mitigate that risk, and that is going to depend greatly on what kind of company you run, but that's the idea. Can you implement engineering controls, meaning increase the annotation practices, or for example, at the grocery stores for stores that are implementing sneeze guards where they're putting their employees behind plastic. Can you do that in some way with engineering controls?

It is only after you think through that and make those plans that you get to employ personal protective equipment, such as should you provide gloves, masks, or goggles to protect your employees for when your mitigation efforts have not worked. So that's the analytical hierarchy. Try to eliminate the hazard. I don't think we can. So you stepped to mitigation. Try to mitigate the hazard. Think about what that looks like in your organization. Then, what do you need to provide for employee personal protective equipment? For those of you in the outdoor recreation space, particularly where there's going to be a situation where you might need to give a client first aid, that is probably going to kick some of those employees into the high risk category potentially. So you need to really think through that issue and probably call your lawyer on that particular issue.

A couple of important things that I've had a lot of people ask about. Can we have our employees sign a form that says they accept and assume the risk of contracting coronavirus at the workplace? That is a bad idea. Don't do that. There's a lot of reasons not to, and Chun, feel free to jump in anywhere and back me up on this. But you are begging for trouble if you do that. You don't have the right to require your employees as a condition of their job to contract coronavirus or to assume that risk. That's not going to save you from having to go through that OSHA hierarchy that I just told you about.

So bottom line on this employee protection stuff, this is something that is mandatory. You have to do this. You have to create this OSHA infectious disease litigation plan in order to show that you are trying to protect your employees. You have to train on the plan that you come up with and make sure your employees understand it, and you have to provide at your expense any PPE that you deem is necessary to protect your employees. But the good news is once you've gone through the process of creating the plan for guests, it's going to be easier to think through how that dovetails with the plan for employees. So again, don't think this is an insurmountable obstacle. It's not. Use the framework that we've given you here today. Consult with a lawyer if you think that's necessary, especially if you have high risk employees, and spend all of your downtime in your closet creating this OSHA plan.

Brandon Lake:

Okay, great, Leah. Thank you. Super helpful stuff there. I know we've got a couple more topics to try to hit here. We've got a few questions coming in. Let's go ahead and move into this next topic, and then we'll get some questions answered, and try to wrap things up here, because we're coming up to the top of the hour here.

How To Prepare You Online Waiver With The Future In Mind

Brandon Lake:

We've talked about a lot of things here today in terms of what do we do with employees? What about waivers? Elements to creating this plan? I think we've all learned a lot from this experience as businesses. We've learned that maybe we didn't have the things in place that we needed to have in a catastrophic situation like this. I think if everyone was un-muted here, we could probably have a very long discussion about all the mistakes we've made and things we've learned. But Chun, why don't you take us through just a few things here in terms of thinking about the future, things that we can learn from now, and get in place. If we can quickly go through some of these so we can leave a little bit of time for questions here at the end, that would be great.

I think you're still muted.

Chun T. Wright:

I'm muted, okay. A lot of what I will be covering is based on things I've been talking about for years, but also that have come to fruition as far as the importance of those over the last few weeks. First, is booking terms and conditions. So many issues right now with respect to interpreting refund policies, installation policies, if X happens then what happens to our participants money? I've seen some terms that do a better job of that than others. One thing that you'll want to look at with respect to your terms and conditions is say in it that you can change your terms and conditions in time. Because that's what people are doing right now on the fly. They're changing their terms and conditions, and some people are quibbling about that. How can you change your terms and conditions? How can you change these policies? So you want to incorporate that.

I would say the number one thing to put into your booking terms and conditions is a very clear statement about force majeure. Force majeure means circumstances out of your control, major forces. Sometimes they're referred to as acts of God, acts of nature, a host of things. You want to put that into your terms and explain what happens if you are unable to deliver your service, your tour, in the case of force majeure. There are no magic definitions or a single definition about force majeure. People are very confused about this. They think there's some overarching principle. There isn't. First place that anybody will look, and a court will look, is at your contract. So define what a force majeure is. If you don't do that, you will be left to how the court and state law wants to interpret it, and believe me, it's a lot more narrow than you want it to be. So explain what that is. Does it include pandemics? Does it include illnesses? All the things we've talked about.

Then explain, do you give a refund? Is it no cash refund, but a credit? Are you allowed to postpone? You've got to spell that out, because people will use your terms and conditions against you in order to get money back. Right now, cash is king. Everyone's trying to preserve cash flow and trying to get people to rebook activities without having to come cash out-of-pocket.

With respect to supplier agreements, this is where I'm seeing a lot of issues again. A lot of supplier agreements focus primarily on what services are being provided and what the pricing is going to be. They say nothing about force majeure. What happens if either side, business-to-business, relationships cannot deliver? So with respect to a supplier agreement, you want to talk about force majeure. When can you terminate? When can the supplier terminate? What happens to the money? You also want indemnification on a going forward basis. We talked about indemnity in the waiver context. You want that with your suppliers. What if you use a supplier and somebody gets sick due to just something they've done? You want the same ability. You want to be able to sue them, or have them be responsible for your damages and costs of defending that. You also want to ask about insurance requirements. That will help you mitigate your financial loss if your suppliers also have insurance.

Business banking. I think we're seeing it so much with the various loan programs that are out there. Who's getting the money, who's not getting the money. So much is turning on relationships with banks. In the quiet times is when you should be laying the foundation for the bad times. Build those relationships up. I think there's a lot of good data on which banks are doing a commendable job right now and which ones aren't. Go to those banks that are helping the small businesses in need and develop those relationships. It takes time, but they will help you get to the front of the line. They will help you navigate crisis moments. If you don't have a line of credit, get one. That's what it's there for. Again, this might sound really complicated or, really, things that are unattainable for small companies, but they're not. You're just going to be doing things on a smaller scale than the giant companies. But you can still take advantage of this.

Lean on the US Chamber of Commerce, the Small Business Administration, the US Small Business Development Centers. They are helping small businesses right now, not only navigate this crisis, but prepare for the future.

Then finally on insurance. This is so key. Make sure that you are thinking about your major risk in that you have insurance in place for that. Look at commercial general liability insurance, which covers physical and property damage, that your customers may incur. Look at professional liability insurance, umbrella insurance for businesses and personal. If your insurance limits reach a certain point, even if you have insurance, you're not going to be covered for the remainder. So that's where umbrella insurance can step in to make up for the difference. Look for add-on policies. Policies that cover independent contractors, data breach. If you're collecting some sensitive information from your participants given COVID, you want data breach and data protection coverage. Communicable diseases, read your policies super carefully and understand what's excluded, what's not. It's all about exclusions and what's covered. If there are things that are not covered, find out if you can get coverage with an add-on policy instead of just accepting what's handed to you. You can just pay maybe a little bit more of a surcharge and get the coverage you need.

Business interruption is a big area. I won't go into detail there, but it's a bit complex. Then with respect to travelers, I would really be highly recommending that they obtain travel insurance and considering canceled for no reason, because regular comprehensive travel insurance may not have covered certain COVID situations. If they get canceled for no reason and their insurance covers cancellations on their part, then that will benefit you financially, because they won't be looking to you for refunds and the like. One other thing with travelers is have people sign up for the Smart Traveler Enrollment Program through the US State Department. When COVID first came out in Wuhan ...

When COVID first came out in Wuhan, the US government sent government plane to collect dignitaries, WS diplomats. And anyone who signed up with the state department could get on that plane. So there's a lot of benefits to that that can turn into better financial protection for you. So with that [crosstalk 00:00:26].

Brandon Lake:

No, that's great. I want to just show, you mentioned the force majeure and including that in our policies, and I think you know a lot of companies, those who are taking advanced bookings or registrations for anything, are definitely looking at this and reevaluating their policies. For those of our clients on the call, I just wanted to quickly share how you might go about updating that. Very straightforward, if you went into your settings of the system, go into your policy section. You can have any number of cancellation policies there which might be shared between everything you sell or you might have individual ones. So have someone craft a statement. This is just an example, again, here. It has all of the general cancellation information. And the bottom section contains a lot of that force majeure type of language that Chun was talking about. And I think going forward, something like that can be a really great protection for a businesses, as you mentioned. But again, do the work to make sure that's put together right for the way you do business, which may be different than what's shown here.

What To Do If A Participant Arrives With Symptoms Of COVD-19 Or Something Else That Is Addressed In Your Online Waiver

Brandon Lake:

So with that, we've got one other thing to kind of wrap up here after these questions, but let me just take a few minutes here for a few questions that have come in, guys. And I'm going to try to just combine a couple of these, but we've got a couple of questions here asking about this, I think people are worried about, as you mentioned Chun, this idea of holding onto cash, right? It's a tough thing right now. Those that have taken any advanced bookings for anything, having to refund that puts the business in a very tight situation often. And there's this balance of trying to please your customer versus survive as a business.

And I'm just going to combine a couple of these, but someone's asking here, if someone did show up to a trip and they actually were exhibiting symptoms at that time, perhaps you're doing a check or you're doing a final verbal check with the group and someone does in fact show symptoms or suspect at a very high measure that maybe they were just recently exposed to this within the last week or so. And yet here they are, they've come to your destination or whatever, and they're ready for this trip. I suspect our responsibility would be to turn them away. And the question is more on the money side at this point. Do we, as a business, are we obligated to give them that refund? Or could we potentially try to maintain a credit for the future with them? I guess the idea is we don't want to pressure them, put any pressure on them that they feel like they have to participate, because then we're in trouble. I don't know who wants to answer that.

Chun T. Wright:

Yeah, first of all, I would say have your terms and conditions say that if someone shows up and they're exhibiting symptoms, then they can get a credit and that's-\

Brandon Lake:

So specify in advance what's going to happen.

Chun T. Wright:

Absolutely specify that, because otherwise you get into these fights with customers as to what they get. They may not be happy, but your policy is your policy. If you want to decide on a case-by-case basis that maybe you give a refund, maybe you do that. We're dealing a lot with that, do we make exceptions here and there. But have your policy say what's going to happen, and then it's clear.

Brandon Lake:

Okay. Yeah, I think setting expectations is a big part of that,. Leah?

Leah Corrigan:

I agree.

As A Business What Should We Do If A Guest Spreads The Virus To Other Guests?

Brandon Lake:

Okay. Another one had to do with a situation where this idea of someone contracting the virus from another guest who knew they had symptoms, or maybe they didn't know. Is it possible for the business to sue this other guest because they brought the virus into the group?

Leah Corrigan:

Possible. Not a case I would want to take.

Brandon Lake:

Okay.

Leah Corrigan:

I think the better way to think about that is your list of inherent risks should include language about the negligence of other trip participants or the possibility of contracting a communicable virus from another participant. So you want to cover yourself in that regard. And whether you can financially recover from a negligent guest, I suppose that's a case that could be right, but it's not one that I would be real thrilled to take on.

Should Posted Signs Be The Same Language Found In My Online Waiver?

Brandon Lake:

Yeah. Okay. Thank you. Somebody's asking, I'm not going to be able to give to all of these here, but in terms of the language with the signage, we talked a little bit about posting signage, what type of sign? This may be something that maybe somebody needs to just check with their own legal counsel on, but if you were to post a sign, is it the same language that maybe you would have put in your online waiver for example? Or is it different language, the one that might go right on the front door of your business? And this is maybe more for those who are taking walk-up type business, people are entering their place of business and you don't want your employees exposed to something. What type of language? What are the key elements that we might want to have in a statement?

Leah Corrigan:

Chun, all you.

Chun T. Wright:

It depends on what's your goal. You're trying to keep somebody out? Maybe you put reminders, short, I wouldn't imagine that you'd put something as detailed as a waiver. But it's kind of like the signs you see that say no entry allowed if you're not wearing a shirt or you're carrying a gun. Don't come in if you are exhibiting these symptoms are still under COVID watch, whatever it is. So I would say something shorter.

And one thing I wanted to mention about insurance, since we're talking about law and suits, lawsuits and things like that, but I've talked to insurance companies, and for Arizona Missions it doesn't really cover... Let's say you've got to give out all these refunds, and you have an errors and omissions policy, it's probably not going to cover lost business income because of that. You can't turn to your insurance policy and say, "Hey, I have E&O insurance. Give me my receipts." That's really business interruption insurance. And that's going to be... We're going to see that battled out for the next couple of years. But, what it will cover, even an E&O, if you get sued by somebody, they will cover the cost of defense as a general matter. But read your policy, I'm not making any representations that it's absolute. So having those insurance policies are really important because a lot of the financial risk comes from just having to hire lawyers and defend.

Should Somebody Sign A New Terms And Conditions?

Brandon Lake:

Yeah. Okay. Question on terms and conditions that came through. So we talked about adding a force majeure clause to our terms and conditions where we have our cancellation and refund policy section. If we do something like that, I'm assuming this question's about whether we'd send that again or not, but I'm assuming that we can't really... Once someone agrees to something at the time of their agreement, at the time of purchase, those are the terms and conditions they've agreed to. We could go back I guess and have them sign new terms and conditions, but that would be a little bit challenging to do in this environment.

Chun T. Wright:

So the question, should somebody sign a new terms?

Brandon Lake:

Yeah. If they've already made a booking months or years ago.

Chun T. Wright:

Yeah. So these are the questions that lawyers sit around and talk about all day long, and judges do it too. Can you make somebody sign or change the terms on somebody? Interestingly, I read an article a couple of days ago, where Intrepid Travel sent out a new refund policy. And people are screaming bloody murder, like, "Hey, these aren't the refund policies that I agreed to when I sign up for booking. You cannot change it on me." Yeah. And so you can try it, but people might get upset about it. You might remember I said in your terms and conditions, you can say, "We can change these at any time." And let's say you go and change them materially, even though you say that you can do it, it doesn't necessarily mean that a court will agree that you can. So I think this is a real tension here.

Brandon Lake:

And to clarify, this is for another question here, that's different than introducing this new statement, particularly about COVID or about contracting an illness, where somebody signing this additional statement or additional language that's been added to our waiver. That's a little bit different than introducing new terms wrapped around your cancellation policy that say, "I'm going to pull these terms out from under you and give you some new ones here suddenly that you didn't agree to at the time of purchase."

Chun T. Wright:

Right.

Brandon Lake:

Right? Those are...

Chun T. Wright:

Yeah, that's different. One is you're trying to keep your program or activity or tour safe. You have to have real time information.

Does Clicking "I Agree" On An Online Waiver Carry As Much Legal Weight As Producing A Signature?

Brandon Lake:

Right. Okay. Well, that makes sense. One question just about, I guess kind of about online waivers in general. Somebody is asking if clicking "I agree" on an online waiver carries as much legal weight as producing a signature, even digitally, on an online waiver. Chun, I know you and I have talked about this a lot before.

Chun T. Wright:

Leah, did you have a thought, Leah?

Leah Corrigan:

I'd say yes to try to keep it short.

Brandon Lake:

Yeah, isn't it right that you have either checking the I agree or producing a signature or the system formulating a signature and you saying apply my signature, those are all valid forms of agreeing to an electronic contract?

Leah Corrigan:

Correct.

Where Do We Find Balance In Updating Our Online Waiver, Addressing Financial Survival, And Caring For Our Guests?

Brandon Lake:

Okay. Let's see. I don't know that we'll have... We maybe can take some of these and try to get some responses out to folks, but I need to just wrap up with our last topic here. And Leah, maybe I can have you kind of walk us through this a little bit. This is a challenge, I think, given everything we talked about today, where do we find balance in going through all of this, right? There's a tension between our financial survival and caring for our guests and employees. And it's something that we have to balance. And putting all these plans together and stuff can kind of make that a challenge a little bit sometimes. And how do we go through this whole process and really strike the right balance with what we're creating, the language we're implementing, the new measures were putting in place? Where do we find balance?

Chun T. Wright:

This is kind of a big philosophical question, but here's what I would say. Looking at this backwards to forwards, if you have done good risk management planning, you have a relationship with your bank, you are appropriately insured, you do have some reserves, then you're in a position right now where you can probably survive for a while without it being business as usual because you've set yourself up to be able to handle that situation. If you're an operator who hasn't done that, then you're going to be scrambling. And for those that are scrambling, my advice would be don't simply pull forward hell-bent on on making sure that you stay in business this summer. It's worth sitting back thinking about, "Do I have the capacity to do what needs to be done to operate within the law and within my ethical obligations to my community? Do I have the staff to do that? Is my business such that there's any chance that I can actually appropriately mitigate risk? Or do I need to consider that maybe this is the season to push pause on the business?" And that's a hard thing to consider and I don't say that lightly, but I think there are certain businesses that do need to consider that whether they've done proper planning or not, you just might be the type of operation that cannot really mitigate risks to employees and guests in this scenario. So I think that's step one.

If you think you can mitigate the risk, taking the time to walk through these processes, looking at your waiver closely, communicating with your legal counsel on OSHA and these mitigation plans is going to be important. It's going to take time. And you have to devote your time to that. And, granted, I pass it back to you to talk a little bit about what your situation was in Moab in terms of balancing the success of your business was potentially introducing this virus into a community with not enough hospital beds. And I think that's something that's really worth considering in this whole discussion.

Brandon Lake:

Yeah. And it's a situation that I think a lot of folks deal with. We often operate our businesses in communities that are what they're calling gateway communities. And we take a lot of participants from all over the world. And yet as a community we're a fairly small community. We don't have the hospital resources that a big city might have. And that became more apparent to us. We weren't necessarily considering that in the initial stages of this when this all started coming out. We were very focused on our business and what was going to happen and are we closing our doors? And then it kind of dawned on us that, "Oh no, we do have a major responsibility to our own communities here and to not bring people from the outside to our community that may cause undue stress on the resources in that community."

And that's going to be a challenge going forward. We're balancing that. And it is hard to balance your obligations to your community. And hopefully our government leaders in each area are helping with that. They're kind of specifying plans that we can all follow. And it may be different from one state to the next. And someone mentioned in here in a question, what if your operation spans two states? You operate on a river that crosses into one state, puts in at one state and takes out in another. That could be a real challenge to balance the regulations that are being put in place by one state that may differ from the partner state. And there are a lot of challenges that we're having to balance as businesses.

So I'm hoping that today as we've gone through all of this, this has really been helpful for these businesses. I know there's a lot more questions to be answered. I want to just put on the screen here a couple of resources. If you do have additional questions, you want to engage Leah or Chun to help with any of your legal advice or whatever. It's worth investing some time and money into this as a protection for your future, whether that be thinking about some of the insurance and business planning that Chun mentioned, whether that's the plans that we're putting together. Leah, I like that you gave everybody a lot of confidence with, "Hey, these are probably things that if you step back and think about it, you can do this." And I just want to reiterate that. We get a little bit nervous I think to step back and say, "I've never done this before." But I like your scenario of we have created risk management plans. We do it all the time in our businesses. And this is just yet another one, maybe a different scenario, but we can think through this and knowing what we're dealing with, we can make the right conclusions hopefully and help prevent our risk and protect ourselves financially and find success as we hopefully reopen our businesses here in coming weeks.

I want to just mention if any of you do on the call have additional... If you need to get any more information on software or anything like that, if you're thinking about implementation of new language that you have and aren't sure exactly how to go about that, you can certainly contact, go on waiversign.com, there's a contact form there, and you can get in touch with our support team. Same for RESMARK Systems. If you need to implement something around your policies or something like that that you want to tighten up, that's a fairly straightforward practice. They can get you into the help center, help you with whatever you need.

So we thank everybody for being here today. And hopefully you found all of this very helpful. We will have a recording of the webinar. So if there's anything you missed or you want to share it with additional employees, we'll send that out here shortly and you can have access to it and be able to go through. It'll be in video format so you can jump to the sections you want to re-listen to or whatever and get the information that you need. So thanks very much, everybody, and we'll look forward to our next webinar.

Leah Corrigan:

Thank you.

Chun T. Wright:

Thank you.

Leah Corrigan:

Yeah, thanks to both you, Leah and Chun. We really appreciate your help today with all of this.

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