Understand the protection afforded by waivers, releases and disclaimersMany nonprofits use some form of waiver or release in their programs. Typically, volunteers and participants are asked to assume the risk of participation and hold the organization harmless if they are injured. Although waivers and releases are not foolproof as many courts do not favor them, waivers and releases are often successful — and nonprofit organizations have nothing to lose in requiring them.
Drafting waivers and releases
To optimize the likelihood of the success of a waiver or release protecting an organization from liability, the waiver or release must be carefully drafted to disclose the specific risks to the volunteer or participant. At a minimum:
- The waiver must be in writing. It should be clear, unambiguous and written in plain language.
- Within the waiver, the person should agree to assume risks that are inherent to the activities at hand. An additional benefit of this portion of a waiver is that it makes the person signing the waiver more aware of risks and, therefore, on the "lookout" for potential risks — which increases safety overall.
- The waiver should include negligent acts.
- The waiver must be knowing and voluntary. To ensure waivers are entered into knowingly and voluntarily, consider including a discussion of the waiver during orientation and training. The training session should include safety training (if applicable).
- In exchange for signing a waiver, the person must receive something of value. In the context of a nonprofit program, the value received by the volunteer is generally the opportunity to participate in the organization's work. In the case of a program participant, the value is the benefit of the service(s) they receive from the organization.
Some states' laws provide for charitable immunity to protect nonprofits from litigation. However, states differ as to what conduct is protected by this immunity. Some states offer no charitable immunity whatsoever. Consult an attorney about your state's laws on this topic.
There are some factors that will cause a waiver or release to be unenforceable, such as a situation where a waiver or release is fraudulently obtained.
In addition, waivers and releases that are against public policy — such as a waiver of injuries that are intentionally or willfully inflicted — will not be enforced. Similarly, a waiver cannot provide absolution to an organization for reckless or grossly negligent conduct. Some states prohibit waivers for specific activities. Check your state's laws for this type of activity-specific prohibition.
Another consideration in this arena is the concept of "disclaimers". A helpful example of a disclaimer is a sign posted at a swimming pool stating that no lifeguard is on duty and swimmers swim at their own risk. Disclaimers, when appropriate, can be useful in reducing injuries or accidents by simply making people aware of potential risks, which increases the likelihood that they will exercise extra caution.
State laws vary widely on the issues and protection afforded by waivers, releases and disclaimers. Even though they're not foolproof, nonprofits should always consider the use of waivers, releases and disclaimers when designing their risk management plans.
For more from Ellis Carter, visit CharityLawyer.