How Health Clubs Can Fulfill Their Legal Duties Owed to Members, Guests and Employees While Re-Opening During the COVID-19 Pandemic
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Paul R. Bedard, Esquire
Health clubs have always owed a duty of reasonable care to their members and guests, protecting these people from harm caused by reasonably foreseeable risks and warning these people of risks that are known or reasonably should be known by the club. Clubs must also provide a safe workplace for their employees. Although most premises liability claims have historically involved slippery floors, uneven surfaces and malfunctioning equipment, the advent of COVID-19 has made it likely that lawsuits alleging exposure to COVID-19 will likely join the top of the ranks.
As health clubs plan to re-open, these clubs will need systems in place to adequately monitor the health of members, guests and employees, and the sanitary conditions within the club. Should a club know of an infected member, guest or employee, and the potential exposure of others to COVID-19, the club may be deemed grossly negligent when failing to warn the people potentially exposed to the virus. This liability will result whether the club had knowledge --or reasonably should have had knowledge-- of the exposure. Additionally, any deficiencies from a sanitary or cleanliness standpoint may further increase a club's legal liability.
Due to the rapid spread of COVID-19 throughout our population, it is anticipated that we will see a dramatic increase in lawsuits alleging a failure to safeguard members, guests and employees from contracting the virus. Best practices indicate that health club owners and operators should self-impose a heightened duty of care towards their members, guests and employees. A duty that may feel heightened today may merely seem reasonable within tomorrow's new reality.
At a minimum, health clubs must adhere to any applicable laws governing capacity, social distancing, etc. However, clubs would be well-served by incorporating the Centers for Disease Control and Prevention's (CDC) guidelines into as many aspects of daily operations as possible, above and beyond the minimal legal requirements. The latest CDC guidelines can be found at: bit.ly/clubinsider92.
By implementing a heightened duty of care for members, guests and employees, health club owners and operators can help protect the health of the people they serve while minimizing the club's legal risk within this area. Some key recommendations that may prove particularly helpful to health clubs fulfilling their legal duty are as follows:
- Employees who show symptoms, such as fever, cough, or shortness of breath, should notify their supervisor and stay home.
- Infected employees should not return to work until CDC-recommended steps are taken and the criteria to discontinue home isolation are met. Healthcare providers and State and local health departments should also be engaged within the decision for the employee to return.
- Employees who are healthy but who have an infected family member or person at home should notify their employer and follow CDC-recommended precautions.
- Employers should minimize face-to-face contact between employees and customers, particularly for older or more at-risk employees.
- Employees who report to work appearing to be symptomatic should immediately be separated from other employees, members and guests and be sent home. If it is confirmed that an employee has COVID-19, other employees should be informed of their potential exposure while maintaining the confidentiality required by the Americans with Disabilities Act (ADA).
- Implement policies and procedures related to cleaning and disinfecting. Regularly clean and disinfect frequently touched objects such as fitness equipment, workstations, keyboards, telephones, handrails, doorknobs, light switches and other surfaces. Document these practices.
- Educate employees regarding proper hygiene, including handwashing and sneezing. Practice social distancing and discourage the sharing of other employees' phones, desks, offices, etc. Post signage to encourage these practices. Discourage handshaking while encouraging noncontact methods of greeting.
- Ensure that sick leave policies are flexible, non-punitive and consistent with CDC guidance and public health recommendations. Train employees to be aware of these policies.
- Be prepared to alter business operations. Have alternate supply chains and develop contingency operation plans should suppliers fall short, should operations require alteration or suspension, should employee absenteeism increase, etc. Cross-train employees to cover for absent employees when necessary.
- Allow work to be performed remotely when feasible.
- Increase physical space between employees. Increase separation between employees and customers. Utilize partitions where required and wherever practical.
- Maximize ventilation within the club and increase the percentage of outdoor air that circulates into the club.
- Provide no-touch paper towel and tissue dispensers and disposal receptacles.
- In addition to soap and water in the locker rooms, place no-touch hand sanitizer dispensers throughout the club. Keep excess supplies in stock to guard against supply chain disruption.
- Utilize video conferencing or telecon-ferencing for work-related meetings and gatherings when possible. Those meetings that must occur in-person should be held in open, well-ventilated spaces with social distancing measures in place.
The health and safety challenges faced by health clubs during this pandemic, and the resulting duties placed upon these clubs, will be many and varied in the days to come. However, those clubs that rise to the challenge will rightfully earn increased trust and commitment from their employees while boosting customer loyalty. However, during this unique point in time, it is essential to note that this article is not intended as legal advice. Now more than ever, unusuadl facts and circumstances, and varying applicable laws, prohibit one-size-fits-all recommendations. Therefore, the information presented in this article is meant for educational purposes. Please consult an attorney for specific direction in this regard.