Many 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. However, waivers and releases are not foolproof as many courts do not favor them. Still, they 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, a well drafted waiver should include the following:
- The waiver must be in writing. It should be clear, unambiguous, and in plain language.
- Within the waiver, the volunteers/participants should agree to assume risks that are inherent to the activities they will be participating in. An additional benefit of this portion of a waiver form 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.
- Negligent acts should always be included in a waiver.
- 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, a participant 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 programs. 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 protection as to litigation against charities. However, states differ as to what conduct is protected by this immunity. Some states offer no charitable immunity whatsoever.
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 as to 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 to think of swimming pools with signs posted that state 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.
In conclusion, even though they are not foolproof, nonprofits should always consider the use of waivers, releases and disclaimers when designing their risk management plans.
Ellis Carter is a nonprofit lawyer with Caritas Law Group, P.C. licensed to practice in Washington and Arizona. Ellis advises nonprofit and socially responsible businesses on corporate, tax, and fundraising regulations nationwide. Ellis also advises donors with regard to major gifts. To schedule a consultation with Ellis, call 602-456-0071 or email us through our contact form.