Meetings and events may have changed forever, as the COVID-19 pandemic has brought about new worries, new requirements and new legal issues. Meeting planners have always had to worry about protecting themselves from legal liability, but that will become even more important in the year ahead.
Jonathan T. Howe, founding partner and president of Chicago-based Howe & Hutton, Ltd., says everyone needs to recognize that planning meetings in 2021 will be a moving target, with every day looking different. That’s why he’s suggesting to clients that they look at key dates to make decisions about moving the event forward, so they have protection against needing to move the date. That could be 60, 90 or even 180 days to make decisions without liability.
Additionally, he suggests that waivers be issued for all attendees that spell out COVID-19 protections so planners aren’t responsible for anything that might happen while they are involved in the activities. “There will be requirements as to what the facility is putting in place and what are their best practices,” Howe says. “They must represent and warrant to you that they are doing all the steps that may be required of them. If that means social distancing or mask wearing, they must do that. They must agree that they are in compliance with any best practices in place.”
Tre Lovell, Esq., founder and owner for the Lovell Firm, A Professional Law Corporation in Los Angeles, California, notes, when it comes to event planning, there are three types of liability with which to be concerned. The first is contractual liability, which are obligations referenced in the written agreement, i.e. a restaurant vendor’s obligation to provide food and drink, and security. The event planner’s liability starts with complying with these obligations.
Statutory liability is next. This refers to the various statutes and laws that regulate premises and services associated with event planning. “For example, building occupancy, fire safety compliance, etc.,” Lovell says. “Failing to abide by these can result in liability and/or penalties to the event planner.”
General liability or “tort” liability is the third type of liability a planner must think about. “This comes into play when there is an accident or personal injury occurs at the event, or if property damage is done,” he says. “The event planner may be liable if [he or she] played a role in or failed to secure reasonably safe premises to host.”
Perform a Risk Assessment
Mary Beth Jenson, CMP, strategic meeting manager, Consulting Services, with Event Travel Management by CTM, has helped plan meetings and events for numerous Fortune 500 financial services companies over her 20-plus years in the business. As soon as a meeting need is identified, her first step is performing a risk assessment, and that is even more important in the post-COVID world. “Consider the destination and look at what the current restrictions related to COVID-19 are — both for travel and group restrictions,” she says. “The most important thing would be to fully investigate any and all locations and venues before contracting a program. Be sure attendees can travel there without issues, and ensure the hotel is fully capable of managing all COVID-19 precautions and safety steps. There is a lot of detail to this, and local health authorities should be contacted.”
Planners will also need to take into account brand considerations; in other words, would there be a negative view of the brand or company if the public became aware a meeting was taking place during a lockdown or other pandemic restriction? Regardless of whether the meeting is in person, virtual or a hybrid between the two, it’s vital to protect yourself from legal problems that could pop up, which is why Jenson highly recommends consulting and following standard Events Industry Council – Apex COVID-19 guidelines, which will provide timely and risk-mitigating data/information.
Justin VandenBout, an insurance and litigation attorney, and a shareholder at Houston-based Chamberlain Hrdlicka, notes while a comprehensive risk management plan should be tailored to a particular event, some general strategies apply across the board. For one, the planner should take time on the front end to identify the specific risks to their business, and consider how to limit or mitigate their exposure to those risks. “For example, if the event could be cancelled, client contracts may need to include deposit requirements and specific refund conditions, or even require the client to carry event cancellation insurance,” he says. “We have knowledge of many businesses saving millions through its purchase, or customer’s purchase, of event cancellation insurance.”
To account for third-party liability claims, the planner should confirm that vendor contracts include valid and enforceable insurance and indemnity provisions to cover any claims that may be asserted in connection with your event. “In addition, planners should consider approaching their insurance broker or insurance attorney regarding the addition of a limited virus endorsement to their policies that provide some coverage in the event losses arise from any virus,” VandenBout says. “There is limited virus coverage that is available in the commercial insurance market that may be beneficial to an event planner in the COVID-19 world.”
Greg Duff, a principal at Seattle-based Foster Garvey PC Law Firm, and chair of the firm’s hospitality, travel and tourism practice, says planners need to consider carefully the venue’s cancellation, re-booking and force majeure contract provisions, and understand what conditions or circumstances warrant cancelling the meeting without liability. “As for the meeting or event itself, understand the venue’s COVID practices and policies [and communicate those often to your group and attendees],” he says. “Understand the restrictions applicable to attendees and how the facilities and use of the facilities might be different. Understand the steps being taken by the facility to maintain guest health and safety, or alternatively, set out in writing those steps that the group wants to be taken [e.g., testing, cleanliness, disinfecting, vaccinations].”
Duff also suggests considering release or hold harmless agreements, or provisions with groups and/or attendees, and whether COVID testing is necessary for those working an event or attending an event. If yes, ensure that appropriate protocols are put in place around testing — when/where conducted, who receives results, how to handle positive test results, etc.
Don Phin, an employment law attorney, speaker and coach, and president of Coronado, California.-based Don Phin Co., recommends planners rely on the trusted advice of an insurance broker who specializes in meeting planners to help guard against problems. “It is a unique niche, with many moving parts,” he says. “For example, there is coverage for property, crime and general liability exposures. Then there is cyber liability, employment practices, liability and workers compensation. Given the many lawsuits fighting over coverage for losses from the pandemic, and the underwriter’s awareness of the exposure, you can expect the industry-specific coverages to get better defined and more expensive.”
He notes planners are still dealing with legal problems resulting from 2020’s COVID-related cancellations. “Negotiations with hotels, food and beverage, vendors, speakers, etc., should produce an agreement that protects the meeting planner in the event of cancellation,” Phin says. “The reality is these are long-term partners, and we have to be willing to compromise with their needs as well. It may end up being that very few of these exposures are covered by insurance.”
Problems Could Pop Up
One issue that may pop up this year due to challenges of the pandemic is that hotel facilities and services available during contracting may not be available during your meeting dates due to new restrictions around COVID-19. Before threats of lawsuits come about, meeting planners should have a plan in place to make it right. But other issues could cause legal problems as well. “While planners are usually prepared for attendees getting sick during the meeting with flu, food issues, or a little too much fun the night before, these types of issues didn’t necessitate the need for quarantine,” Jenson says. “Now, we need to be prepared for an unexpected pop-up of a positive COVID-19 test and how this will be handled. A sick attendee will now possibly not be able to travel home. What will the housing arrangements be and who is responsible for the costs?” Those are things that must be considered, and all force majeure should now include specific language around “pandemic.”
Lovell says protecting yourself starts with the contract and terms regarding who is liable for specific occurrences. “Event planners should have the premises owner and/or vendors agree to be responsible for occurrences under their control,” he says. “For example, the premises owner will warrant compliance with occupancy and ensure the premises are safe for guests. Vendors will warrant that their products are safe and employee actions will be the liability of the employer.”
Each agreement should have an indemnity provision that should the event planner get sued for any of these things, the other parties will agree to defend the planner in court and indemnify it for any liability that should be asserted against the planner. “Second, make sure to have [the proper] insurance,” Lovell says. “This should include premises liability, general commercial liability, professional negligence/errors and omissions, as well as other coverage depending on the nature, location and type of event that is being planned.”
When planning with COVID in mind, Lovell shares it’s important that event planners are aware of and ensure CDC and local compliance with COVID protection. That means social distancing, masks, cleaning protocols, availability of sanitizer and reduced capacity should always be a consideration. “As part of any agreement, the event planner should try to shift the burden of complying with COVID to the premises owner or other vendor, if possible,” he says. “Indemnity provisions should include COVID-based claims. Also, make sure to have force majeure provisions or other exceptions to performance based upon COVID issues.” In other words, make sure the planner can cancel or postpone an event due to COVID concerns and not be liable therefore, or having such constitute a breach of their agreement.
Additionally, he recommends that guests sign a disclaimer, if possible, wherein they waive any claims of liability against the planner or premises owner should the guest contract COVID at the event. He says to include “General disclaimers put into announcements or posted at the event that anyone with symptoms or known contact with COVID-positive people are not to attend,” as well as “that, although the event planner is taking all reasonable precautions to prevent the spread of COVID, it can nevertheless not guarantee to prevent the spread of the virus.”
Duff reminds that COVID and the resulting guidelines and restrictions are continually evolving, so he suggests thinking carefully how things might change between now and the scheduled event, and how those changed conditions might affect your obligations for moving forward with the event.
“It is also important to communicate clearly and frequently with attendees on what restrictions might be in place,” he says. “Many restrictions are controversial [e.g. mask wearing] and the more notice that is provided the better.”
Phin had one planner who went full-on with an in-person meeting last spring who didn’t take into account OSHA/state/county/local health guidelines. “Had he done so, he would have quickly realized the only choice was virtual,” he says. “He spent a lot of time and money going in the wrong direction. No insurance for that.”
Virtual Meetings Need Legal Protection Too
Online meetings can go awry with hackers, power outages, people not showing up and bandwidth issues, but most underwriters will shy away from coverages for IT problems. Still, there are some protections that can be found. Virtual events are not as easy as one might think, and problems that could result in legal action could pop up if things aren’t handled correctly.
Jenson notes an aspect that may be overlooked is how to ensure the needs of attendees with physical challenges are met.
“One in five attendees is estimated to have some sort of disability,” she says. “How do you ensure that attendees with hearing or visual impairment can attend your virtual event? For in-person events, a sign language interpreter for hearing impairments or special arrangements for visual impairments can be made. A planner must have these issues resolved for virtual events as well.”
Closed captioning is critical for all virtual meetings, as an example. Not having proper tools to ensure inclusiveness could leave room for legal issues. According to Duff, proper advance contracting is more critical than ever, and those planning movies virtually, it’s important to disclaim responsibility for the systems used to support the virtual meeting — technology, internet connection, etc.
“There is a lot outside the control of the meeting planner to make those systems work appropriately,” he says. “Note also that recording virtual meetings often requires specific consent from those participating, so advise appropriately.”
For a hybrid meeting, Howe says you’re really planning two-and-a-half meetings, while virtual is like planning one-and-a-half meetings. “With a lot of virtual, you are doing Zoom and you have everyone’s imaging on the screen, so you want everyone to agree up front that their image can be broadcast and any comments they make can be recorded, so you don’t violate any laws of privacy,” he says. “You need their permission from a copyright and intellectual property standpoint. If you have a speaker, you need their permission to rebroadcast what they are saying.”
It’s not just possible COVID legal concerns that planners need to protect themselves from, as legal liability has long been in important consideration for those in the business. Jenson always starts any new meeting contract by creating an RFP template that ensures consistency across the company and always includes her legal team in the creation of the template. “Review all contract terms carefully — many times — as contracts will present protection for one of the parties only. All clauses should protect both group and hotel,” she says. “Confirm that suppliers/hotels will be operating at full performance over the dates of your program. Include terms that will allow cancellation or cost correction should this not be the case.”
Next, discuss all concerns with the hotel/supplier. “In this time of uncertainty, clarity and visibility are critical for a successful outcome should conditions change after contract execution,” Jenson says. “Include a COVID-19 provision and outline the safety measures in place during the program dates.”
For any meeting, Jenson always develops a written safety plan that details how attendees will be managed if becoming ill during the program and how safety protocols will be enforced. The main problems Jenson has due to lack of protection have been related to cancellation terms not covering pandemic issues. “Many meetings that were contracted prior to COVID-19 did not have cancellation risk mitigated and, due to that, liquidated damages had to be paid to the hotel,” she says. “Other problems center around [the fact that] meeting space that was originally contracted will now not be adequate to conform to social distancing guidelines.”
All of this should now be avoidable with good contract terms and conditions protecting not only the hotel, but the group as well. “My best advice is to make sure you have meeting professionals and legal teams review all contracts prior to signing and to perform your due diligence when planning and executing meetings now and post COVID-19,” Jenson says.
Most meeting planners and legal experts agree that the pandemic will continue to enjoy the majority of attention for some time. “As a vaccine becomes more widely available, the question will then arise about distribution of the vaccine and requirements for those working an event and those attending an event,” Duff says. “If you require negative tests today of attendees, will you soon require proof of vaccination? Beyond COVID, pay attention to the financial health of your chosen venue. Hotels and venues are struggling. Be wary of unexpected or non-standard requests for advance deposits.” I&FMM.