weather icon Clear

Restaurant, fearing coronavirus lawsuit, creates liability waiver

Updated May 12, 2020 - 6:48 pm

Businesses don’t want to be a COVID-19 liability. Many business owners don’t want to have liability either.

With employees coming back to work, business owners are afraid they will be held liable if a worker catches COVID-19 while on the job. Meanwhile, some employees are concerned they’re forced to choose between risking their health or their income.

As Congress discusses the issue of employer liability, at least one Las Vegas business — Nacho Daddy — has tried to get out in front of exposure to a lawsuit.

“If someone’s not comfortable with COVID being out there, then they probably shouldn’t be working,” said Paul Hymas, Nacho Daddy’s co-owner and president.

The chain has created a waiver asking Nacho Daddy employees to absolve the company of liability if they catch the disease and has asked all hires, as the business had laid off all but a handful of employees, to sign it.

Hymas said the company, low on cash, wants to protect itself and its employees during the coronavirus crisis. He declined to say what will happen, or has happened, to employees who decline to sign the waiver.


Businesses are concerned that if employees can prove they caught COVID-19 at work, they could sue their employer, said Randi Thompson, state director for the National Federation of Independent Business.

An NFIB survey released last week showed that 68 percent of small-business owners are very or moderately concerned about liability claims increases, while only 6 percent are not at all concerned.

Bryan Wachter, senior vice president of the Retail Association of Nevada, said he has seen lawsuits like that pop up around the country where businesses are reopening. The association, with some 200 other signatories, sent a letter to Congress on Monday in support of a limited safe harbor.

The risk of litigation is a hurdle to full reopening, he said.

Several retailers are going into debt for several years in order to reopen, and that potential liability from a legal side would be enough to ruin their business.”

The Nevada Resort Association also was a signatory.

“All businesses that are working responsibly and in good faith to ensure the most secure environment as possible, like our members, should not be subject to expensive litigation,” association spokeswoman Dawn Christensen said. “Ligation should focus solely on those bad actors that fail to take necessary steps to protect their employees and customers.”

Wachter said speaking to Congress and the State Legislature about providing a “limited safe harbor” from coronavirus-related litigation is a “much better use of a retailer’s” time than having employees sign a waiver.

“Given Nevada is a workers’ comp exclusive remedy state, it’s unlikely that that kind of waiver would be enforceable or upheld by the court,” he said.


A local business attorney, when asked to review the Nacho Daddy waiver, agreed. An employee catching COVID-19 on the job would fall under a workers’ compensation claim, Aviva Gordon said. She doesn’t think a business could have its employees waive its workers’ comp claims.

“I would be concerned if this were a client of mine wanting to put this forward,” Gordon said.

For a waiver to be enforceable, it must be signed voluntarily, she said, and it wasn’t clear whether someone faced with the reality of bills and a family would be signing it without “some degree of undue influence.”

A group of former Nacho Daddy employees sent a letter to the Nevada Labor Commissioner on Sunday expressing concern about the waiver, among other labor practices. They said some employees who handle food came to work while showing symptoms, as they were “too afraid not to return in fear of losing unemployment and/or future job security.”

Gordon said this was the first liability waiver related to COVID-19 she’s seen.

Without contact tracing, Gordon said, it would be difficult for most people who catch COVID-19 to prove where they caught it. But it makes sense for businesses to consider their liability; one lawsuit could send them belly up even under normal circumstances, she said.

What to do

Reducing liability for employers is “fundamentally the wrong approach” to supporting small businesses during the crisis, according to Amanda Ballantyne, executive director of Main Street Alliance. The national network of small-businesses advocates for public policy.

“It’s irresponsible to start talking about employer shields because what we know will happen is that big businesses that have shareholder interest in functioning right now will drive the opening of a marketplace in places that are not safe to open, and there will be forced competition on businesses that are more responsible in their communities and it will exacerbate a public health crisis in an irresponsible and completely unnecessary way,” she said.

Ultimately, businesses should consider what’s best for them, their employees and their customers, Vegas Chamber spokeswoman Cara Clarke said.

The pandemic represents new territory for a lot of businesses, and liability is on the minds of a lot of them, she said.

The chamber recommends reaching out to an employment or labor attorney if they’re interested in exploring a waiver.

“Google searching it is probably not the best way to go about this,” Clarke said.

Contact Mike Shoro at mshoro@reviewjournal.com or 702-387-5290. Follow @mike_shoro on Twitter.

Nacho Daddy release of liab… by Las Vegas Review-Journal on Scribd

Don't miss the big stories. Like us on Facebook.
Business Videos
Allegiant Stadium lanai doors open revealing Al Davis Memorial Torch
On Wednesday Allegiant Stadium opened its massive lanai doors revealing the 85-foot-tall Al Davis Memorial Torch and a peek inside the $2 billion, 65,000 fan capacity indoor stadium.
Status of renters and homeowners during COVID19 pandemic - Video
Rj reporter Eli Segall discusses how COVID19 is affecting renters and homeowners in Nevada. (Renee Summerour/Las Vegas Review-Journal)
Health experts: Smoking in casinos should be banned - Video
Experts say smoking can spread the COVID-19 coronavirus. But not because of airborne particulates. The virus could spread from a smoker’s likely pattern of fingers-to-mouth-to-gaming-device. (Las Vegas Review-Journal)
Knights’ empathy questioned
A sports talk host called this week a public relations disaster for the Knights and a tourism official said it may shorten the honeymoon period between the team and its devoted fan base.
Chinese visitors in Las Vegas - Video
There were 236,970 visitors from China in Las Vegas in 2018, according to data from the Las Vegas Convention and Visitors Authority. (Las Vegas Review-Journal)
Resorts World Las Vegas lights up - Video
Construction crews tested exterior lights at Resorts World on the Las Vegas Strip, May 19. (David Guzman/Las Vegas Review-Journal)
Station Casinos releases health and safety plan for reopening - Video
Station Casinos rolled out new health and safety protocols Monday morning, May 18, including the use of thermal scanners, testing all employees for COVID-19 and “enhanced cleaning technologies.” (Michael Quine/Las Vegas Review-Journal)
Maverick Helicopters offers 250 free tours for two - VIDEO
Maverick Helicopters will restart its flights on Friday, according to a news release. To celebrate, Maverick will give away 250 flights for two with its “Our Vegas” promotion. (James Schaffer/Las Vegas Review-Journal)
MGM Resorts to bring back free parking on Las Vegas Strip - VIDEO
MGM Resorts on Monday announced free parking for all guests at its Strip resorts for the foreseeable future. New York-New York and Bellagio are the first announced hotels to reopen for casino business and return to the golden days of no-cost parking.
Laughlin’s iconic Colorado Belle to stay closed indefinitely - VIDEO
The Colorado Belle, an iconic hotel-casino on the Colorado River in Laughlin, will stay closed for the foreseeable future and lay off its 400 workers. (Michael Quine/Las Vegas Review-Journal)
Laughlin’s iconic Colorado Belle to stay closed indefinitely; 400 to lose jobs - VIDEO
The Colorado Belle, an iconic hotel-casino on the Colorado River in Laughlin, will stay closed for the foreseeable future and lay off its 400 workers.
MSG Sphere construction site remains dormant - Video
The MSG Sphere at The Venetian construction site remains sidelined and representatives of MSG Entertainment offered no updates on when workers might return. (Michael Quine/Las Vegas Review-Journal)
Nevada Gaming Control Board keeping reopening plans confidential
The state Gaming Control Board requires every licensee, from the megaresorts to the corner gas station convenience store slot machine operators, to submit reopening plans, but they intend to keep them confidential.
Natural turf added to Allegiant Stadium field tray
The massive field tray, which will roll in and out of the stadium, has a fresh layer of natural grass turf for Raiders home games.
Players show up at Gila River Casino in Arizona - Video
Gila River Casino at Wild Horse Pass in Chandler, Arizona, is packed with players on the casino’s reopening day, Friday, May 15, 2020. (Elizabeth BrumleyLas Vegas Review-Journal)
Casinos reopening in Phoenix area - Video
Harrah’s Ak-Chin Casino reopened in Maricopa, Arizona, on Friday, May 15, 2020. It was closed during the government shutdown for coronavirus. (Elizabeth Brumley/Las Vegas Review-Journal)
Caesars Entertainment to phase In reopenings - Video
Caesars Entertainment, the operator of Caesars Palace and eight other Las Vegas resorts, on Monday announced it would phase in reopenings with a comprehensive safety and health plan with employees wearing masks across its network of properties. (Las Vegas Review-Journal)
Nevada Gaming Commission meeting
Full meeting of the Nevada Gaming Commission on Thursday, May 7, 2020.
Sisolak says businesses will begin reopening under phase 1 - VIDEO
The first phase of reopening Nevada’s businesses will begin Saturday, May 9, Gov. Steve Sisolak said Thursday. (James Schaeffer / Las Vegas Review-Journal)
Henderson winery reacts to Sisolak's economic plan - VIDEO
Governor Sisolak's reopening plan is easier said than done for the only winery in Clark County. Grape Expectations is trying to figure out how to open up shop when they are three businesses in one. (James Schaeffer / Las Vegas Review-Journal)
Southwest requiring face coverings
In an effort to increase safety for passengers and staff during the COVID-19 pandemic, Southwest Airlines is updating protocols that include requiring passengers to wear face coverings beginning May 11.
Locals rush to reopened tennis courts
Daniel Nunez and Sarah Germain made immediate plans to go to their local tennis court, Darling Tennis Center, when they received an email that the facility would open on May 1.
Businesses in Henderson begin reopening - VIDEO
In downtown Henderson and at The District at Green Valley Ranch, small shops are opening their doors for business. (Michael Quine/Las Vegas Review-Journal)
MGM CEO: Bellagio, New York-New York to reopen first after shutdown - VIDEO
The head of MGM Resorts International isn’t sure when he’ll be able to open properties in Las Vegas, but said Thursday that New York-New York and Bellagio will likely be the first to open their doors. (James Schaeffer / Las Vegas Review-Journal)
New visitation report shows plunging numbers for March
The Las Vegas Convention and Visitors Authority reported Thursday that convention attendance fell 54.8 percent to 249,800. March normally is one of the city’s strongest months for conventions and trade shows.
US jobless claims climb to 30 million in 6 weeks - VIDEO
The Labor Department released the tally of the most recent jobless claims on Thursday. First-time claims for the week ending on April 25 increased by more than 3.84 million. (Las Vegas Review-Journal)
The Venetian to have EMTs, thermal cameras upon reopening - VIDEO
The hotel-casino operator, Las Vegas Sands Corp., announced updated protocols on April 28 for when its Las Vegas properties reopen, sometime after May 31. (Michael Quine/Las Vegas Review-Journal)
Unions contracts expiring - VIDEO
RJ investigations reporter Arthur Kane and Renee Summerour discuss the uncertainty of union contracts expiring in June, and how the extent of the financial damage from the crisis will make it difficult for unions and governments to negotiate collective bargaining agreements, possibly sending many to arbitration. (Renee Summerour/Las Vegas Review-Journal)
Las Vegas Strip hoteliers outline cleaning plans upon reopening - VIDEO
Nevada Gov. Steve Sisolak has yet to confirm when casinos will be able to reopen, but operators are already preparing for the day they’ll have to reassure guests their properties are clean and safe amid the virus outbreak. (James Schaeffer / Las Vegas Review-Journal)
Treasure Island plans to reopen May 15 - VIDEO
Treasure Island is planning to open its doors to guests May 15, despite Gov. Steve Sisolak saying Wednesday that gaming shutdowns, currently set to end April 30, will probably be extended an undetermined amount of time. (Michael Quine/Las Vegas Review-Journal)
1.9M seek jobless aid as reopenings slow for 9th week

The diminishing pace suggests that the job market meltdown that was triggered by the coronavirus may have bottomed out as more companies call at least some of their former employees back to work.