Risk Management Assessment for The New Year
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Paul R. Bedard, Esquire
The start of a new calendar year is as good a time as any to assess your club's risk management exposure. The primary areas of potential legal exposure for most health clubs include premises liability claims, medical emergencies, employment disputes and COVID-19-related operational concerns. The most effective method of addressing any legal risk is to act preemptively.
I have covered each of these major areas of legal risk individually and in more depth within prior editions of Club Insider. Please see the Club Insider Archives for this material. However, the following is intended as a reminder to summarize the key points from these articles and to help club owners and operators “check in” to assess where their club stands as it relates to some of the health club industry’s most prevalent legal risks.
Premises Liability Claims
From a legal standpoint, health club members and guests are invitees. They are owed a reasonable duty of care and must be protected from any harm or injury caused by reasonably foreseeable risks. Therefore, the premises must be inspected thoroughly and consistently. Maintain a facility inspection schedule and archive these records for at least the statute of limitations within your jurisdiction for a premises liability claim. Document any facility defects and promptly address them by repairing the defect or shielding members, guests and employees from the defect. Establish and maintain clear policies regarding the timeline and process for correcting such defects. Any facility defect, whether a known defect or one that reasonably should have been known, will increase liability exposure.
All members and guests must have signed liability waivers on file. The liability waiver should be comprehensive without being overly broad or unfair. At a minimum, the waiver should identify the inherent risks within the club and describe the assumption of risk on the part of the member or guest, bar claims due to employee negligence, and be conspicuously posted in language that is easy to understand. However, it is important to note that the enforceability of these waivers still varies widely across jurisdictions. Moreover, excessively broad waivers are often frowned upon by courts even within those jurisdictions where these waivers are enforceable. Where enforceable, a sound and balanced liability waiver will protect from most claims stemming from unforeseen accidents. However, it will not protect against gross negligence or intentional acts. Engage counsel when designing your liability waiver and stay abreast of legal developments in terms of enforceability and requirements.
Require outside contractors to sign indemnification agreements for snow removal and other maintenance services, indemnifying the health club for any claims or losses related to the maintenance of the affected areas. Maintain service contracts in writing and include specific language describing what conditions trigger snow removal, salting, sanding, etc. Obtain proof of liability insurance from outside contractors and require that the health club be named as an additional insured. Review the health club’s liability insurance annually to ensure that it is maintaining pace with the needs of the business.
When an injury occurs on the premises, document the incident with a written incident report and obtain photos. Immediately offer medical assistance to the injured and gather statements from witnesses and anyone involved. Archive these records for at least the length of the statute of limitations for a negligence claim within your jurisdiction.
The unfortunate reality is that medical emergencies are inevitable. The potential financial exposure attached to the mishandling of a serious medical emergency is massive. All employees must be trained to handle these emergencies. Training must happen early and often within the employment relationship. Maintain records of this initial and ongoing training along with updated copies of all employee CRP and AED certifications. Schedule trained and certified staff during all operating hours.
Understand the law within your jurisdiction and ascertain whether an AED is required. If not legally mandated, consider having an AED, nonetheless. Even in those jurisdictions lacking an AED requirement, some courts have declared that not having an AED constitutes an intentional indifference towards members and guests, rising to a finding of gross negligence. Conversely, good Samaritan laws protect AED users in all States. Confirm that your AED is operational and up to date with inspections and software. Keep meticulous records of maintenance procedures, inspections and software updates. Ensure that all staff can quickly locate and operate the AED.
Have a written emergency plan to effectively address the most reasonably foreseeable medical emergencies including heart attack, cardiac arrest, stroke, hypoglycemia and orthopedic injuries. In addition to an AED, keep first-aid kits readily available and appropriately stocked. Ensure that all employees know where these kits are located. Train employees to know which scenarios require an immediate call to 911.
Just like a premises liability claim, promptly complete a detailed incident report following any medical emergency. Reach out to the injured party to assess their wellbeing and to express the club’s genuine concern. Assign this follow-up task to an employee who is trained on how to communicate to parties following a medical emergency. Heartfelt sympathy should not be supplemented by unwarranted apologies or damaging statements that may come back to haunt the health club within a claim or lawsuit.
Employment claims alleging sexual harassment, discrimination, wrong-ful termination and workplace injury are the most common claims filed against companies in the United States. Standardize onboarding and training procedures and establish clear policies prohibiting unlawful harassment, discrimination and retaliation. Include a description of the employment relationship and make clear that the health club is an Equal Employment Opportunity Employer with reference to the Americans with Disabilities Act. An increasing number of States have enacted laws mandating sexual harassment prevention training with ongoing developments. Stay abreast of these requirements. At a minimum, detail all employment policies within the employee handbook and keep signed acknowledgments of these policies within each employee’s personnel file.
Expressly communicate that violation of employment policies will lead to disciplinary action. Enforce these policies consistently across the organization regardless of rank or position. Maintain clear reporting systems to report violations, with redundant channels available to those who might otherwise be reluctant to report due to concerns of retaliation. It is important to note that it is just as illegal to retaliate against someone for reporting a violation as it is to sexually harass or to discriminate against an employee in the first place. Provide ongoing training and document these practices. Archive these records for at least the statute of limitations within your jurisdiction. Engage counsel as early as possible should an employment dispute arise.
COVID-19-Related Operational Concerns
The area of law related to health club liability stemming from COVID-19 exposure is relatively new and rapidly evolving. Governmental mandates and case law developments will continue to shape this somewhat uncertain legal landscape in the months and years to come. In the meantime, health club owners and operators must continue to be proactive when it comes to operationally addressing COVID-19-related issues and concerns.
First and foremost, sick em-ployees should be encouraged to stay home. Anyone who arrives or becomes sick within the workplace with suspected COVID-19 must be immediately separated from employees and members. Should an employee test positive for COVID-19, contact tracing must be undertaken to alert of possible workplace exposure while maintaining employee confidentiality. Employees who are not sick but have reported they have a family member who’s tested positive for COVID-19 should notify their employer. CDC guidance is regularly updated and should be followed as currently in effect. Contingency plans and schedules should be in place to ensure that staffing levels are not compromised when an employee is out sick.
Conspicuously post signage to remind members, guests and employees of respiratory etiquette and social distancing. Mandate proper hand hygiene. Continue to increase the day-to-day cleaning of frequently touched surfaces such as equipment and accessories, lockers, handrails, doorknobs, light switches, countertops, telephones, desks and computers. Schedule regular deep cleaning of the facility and document and archive all cleaning schedules and practices. Maximize the availability of hand sanitizer throughout the facility and regularly communicate to members, guests and employees regarding these ongoing health and safety measures. An exceptionally clean club with these measures in place equates to a safe and trusted club.
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This article is not intended as legal advice. It is offered only for informational purposes. Widely varying State and local laws, and factors unique to every situation, prohibit one-size-fits-all recommendations. Please contact your attorney for specific direction to determine what is appropriate within your current situation and legal environment.