COVID-19 Health Waivers: What Travel Advisors Need to Know
经过保罗·鲁登/
My最后一列set out a long list of disclosure obligations that apply to professional travel advisors in some or all interactions with clients. Those obligations are part of the “price” of being professional, a status that has been translated by courts into the high standard of fiduciary responsibility. I have discussed this in prior columns. These are substantial requirements, but they are not unique to travel advisors. Doctors, nurses, lawyers, accountants, among others, have professional standards with which they must comply at all times.
随着在我们希望是最糟糕的大流行期间全球封锁之后,美国和世界其他地区进入“重新开放”阶段,顾问们意识到这些义务尤其重要。旅行者和供应商指望您帮助回到一个数百万享受旅行的世界。
The re-opening is going to present additional disclosure challenges. Among the leading ones is: what must an advisor know and report to clients regarding supplier masking and social distancing policies and practices?
例如,有报告称,航空公司未能发布明确的政策和/或没有执行其宣布的政策,包括美国人andothers. This creates a problem for advisors because, particularly during the reopening phase, many travelers are going to be very concerned about the health-safety issues in travel.
如果顾问将客户放置在载体A上,事实证明,在机场或更糟糕的是,在途中,承运人没有执行其既定政策要求口罩或确保对无关乘客的座位分离,则旅行者可能会很好受到威胁。在最糟糕的情况下,该人患有Covid-19,并认为她在飞机上被感染了,因为承运人没有执行其政策。她是否正确,她认为她的顾问知道或应该知道承运人的失败。可能会造成严重的法律后果。
This risk relates to all elements of the travel experience sold by the advisor. Keeping up with pandemic-driven health practices policies of suppliers is a huge challenge in itself, compounded by the situation that some suppliers will have policies but not enforce compliance.
当然,在每种情况下都有证明感染来源的能力问题,但这不会阻止提起诉讼,从而引发了辩护。这样的诉讼将争辩说,由于旅行顾问是与客户有关的受托人,因此他们有义务披露他们有理由了解的所有政策,并且承运人不遵守其规定的政策,如果他们知道或有理由,知道这一点。显然,这里涉及到复杂的事实问题,但是您确实不想在此类主张中间。
你可能会想:我有义务know and how can I reasonably be expected to know what goes on in every airport, aircraft, hotel and so on? That’s a fair and reasonable concern. The answer should be that you are not obligated to know what you reasonably can’t know. But, if there is trade press coverage of an enforcement issue at Hotel X or Airline A, you likely will be charged with responsibility to be aware and to advise your client accordingly. If you have placed numerous prior travelers in Hotel X, the complaining party will seek discovery of any complaints you may have received. Your entire staff needs to pay attention to these concerns.
一个困难的问题是,您是否需要在行程中询问每个供应商,以询问例如,是否严格执行面具策略。我认为这不是一个合理的期望,但是直到对这些问题提起诉讼,我不能保证您没有具体询问的义务。此外,如果客户在您的计划/建议讨论中提到了她担心这个问题,那么您将得到很好的建议,以进行这些询问,并保留您所做的事情,所告诉您的内容以及由谁来保密的记录。
Ultimately, the only workable way to protect yourself generally is to get a well-crafted, signed waiver from the client. The essence of the waiver would state that, after reasonable inquiry, you have provided the client with the best available information you had regarding the pandemic-protective policies and practices of the suppliers involved, but that the client understands that the supplier(s) may not apply those policies as diligently as the policies suggest. The waiver might also remind the traveler that even if the supplier makes a good faith effort to enforce its good practices, some travelers may simply refuse to cooperate.
我们需要认识到,这种豁免不太可能产生冰败旅行者的积极反应。每个顾问将对何时使用此类豁免做出艰难的判断。这样的问题是如何解释豁免在推迟客户以前购买和想在重新开放的旅行环境中使用的旅行的应用。让您的律师草拟豁免非常重要,以便符合客户居住的州豁免的任何技术要求。它应该涵盖航空公司,酒店和其他参与客户行程的供应商。
I am aware that ASTA has recently signed on to a multi-association letter to Congress seeking legislation providing temporary liability protections for “businesses [among others] … that work to follow applicable public health guidelines against COVID-19 exposure claims.” Such legislation, if adopted, is unlikely to resolve the issue addressed here of suppliers that do not comply with their own stated policies regarding pandemic protections. Absent that, professional travel advisors should consult promptly with their counsel for a waiver as discussed here so they will have the best protection when making new sales or reconfirming deferred travel plans.