Legal Lingo: Should Clients Stay, or Should They Go?

Months into the COVID-19 pandemic, our phones are finally beginning to ring — and not just about refunds.  

Some of our more intrepid clients are asking this question (first made popular by The Clash in a 1981 hit song): “Should I stay, or should I go?” This is a difficult question for travel advisors. Our bottom lines, which are most likely in the negative right now, call loudly for “yes.” However, our moral decision on whether to advise clients to travel right now might be less enthusiastic.  

As an advisor, what should you do?

To begin with, keep in mind that you don’t have any superior knowledge of the pandemic compared to the traveler. Don’t take on an extra burden by telling the customer that you will conduct research into the progression of the virus as it relates to the potential destination. Rather, ask travelers if they have looked into the state of affairs there. 

The reason for not taking on this burden of liability is that your key task is to solely plan and organize a client’s trip — just like in pre-pandemic days. However, when planning a trip during this new era of travel, be mindful —  and unafraid — to ask the supplier for the best deal and the best payment terms, just in case of a possible cancellation.

Once the client confirms the plan, get them to purchase trip protection coverage in a policy that is as broad as they (not you) can find. Again, do not assume the burden for selecting the insurance product.

Instead, give clients the names of companies in this space, and then invite them to decide which policy they wish to purchase. If, somehow, a customer refuses this extremely sensible request, you must have them sign a disclaimer. (Note: Some operators are now requiring compulsory insurance. They have the right to make this requirement, and it’s probably a wise decision.)

The next question is whether the client should sign a COVID-19-specific waiver for you. Erring on the side of caution, I recommend that you provide at least a written statement about the risks while traveling during a pandemic. Your statement should be upbeat but on-point. Travel is different now, and it will be different for the foreseeable future. Advise the customers that government restrictions and regulations are constantly changing, and they should routinely check government websites as the departure date approaches.

Travelers should also be made aware that they may have to follow certain coronavirus-specific rules during their trip, such as wearing masks or gloves; frequently washing hands; and remaining socially distant from others. Advise them that the pictures they see on websites and brochures may not be reflective of the actual experience. A good line to start with may be, “Policies and procedures governing travel are beyond our control, and for this reason, you must check the websites for your destination, airline, hotel or tour operator."

Some of us desire to go even further and have the customer sign a waiver. If you choose to go this route, I suggest something akin to the following:
“I expressly acknowledge that naturally occurring diseases and viruses (including, but not limited to, the currently widespread COVID-19 virus) may be present and actively occurring in all environments. By signing this agreement, I acknowledge the highly contagious nature of COVID-19, and I voluntarily assume the risk for myself and any minors traveling with me, that I or they may be exposed to or infected with COVID-19 while traveling, and that such exposure or infection may result in personal injury, illness, permanent disability or death.

“I, for myself, and any minors traveling with me, and on behalf of my and their heirs, assigns, personal representatives and next of kin, hereby release, indemnify, and hold harmless The Company, its officers, agents, and/or employees (releasees), from any and all claims, demands, losses and liability arising out of or related to any injury, disability, death or any other loss I may suffer due to exposure, infection or spread of COVID- 19, whether arising from the negligence of the releasees or otherwise, to the fullest extent permitted by law. 

“I have read this release of liability and assumption of risk agreement, fully understand its terms, understand that I have given up substantial rights by signing it and sign it freely and voluntarily without any inducement.” 

So, what’s the answer? Should they stay or go? It’s up to the customer. Don’t make the decision for them.