There are so many questions about legal steps to reopening. I want to walk through a real quick COVID-19 (COVID) reopening checklist for your fitness business. This is not the be all and end all. It could potentially change.
The checklist item is dependent upon when you're taking the specific action.
The governmental directives (shutdown, quarantine, lock down, shelter in place) has been changing from day to day. We just don't know what way is up. You as the business owner have to stay on top of this. FitLegally has a COVID-19 specific landing page that has checklists and other resources to help keep you on track. We also have a waiver of liability that is specific to COVID.
Let's jump in to the checklist!
Identify what the government directives are
The first thing you need to do before reopening your business after COVID is to identify what the governmental directives are. You might want to look at state, county, city, and maybe township.
For example, if you're a restaurant, certain locations are requiring only certain amount of capacity; other locations are not allowing anybody inside at all. That is what I'm talking about when I say identify the governmental directives.
Are you even allowed to be open?
Is there an occupancy limit?
Are there any other restrictions that your government has put on you?
The reason for this is A, I want to keep you guys out of hot water with the government, right? We do not want to have any sorts of issues that we're going to have to unravel and fix. And B, you don't want your client or customer to have something to use against you should something happen to them and you weren't adhering to governmental directives and guidelines. I'm not saying that they would contract COVID or claim they did, but they could even come into your location and fall and break a leg or have something else happen to them. They could then try to make you liable because you were open when you were not supposed to be.
So the very first thing we're going to do is identify the governmental directives and adhere to them. What I would strongly suggest as small business owners is keep your ear to the ground. Make sure you're listening to see what is going on. Don't just look at it now, say "The governor said this this day," and just take that as gold. Things can change. I would put it into your schedule to at least do a weekly, if not daily, check in on this to make sure that you're staying on top of this during this time.
Check for liability insurance coverage
The second thing I want you to do is check for liability insurance coverage. If you don't have liability insurance, you need to get it. I have said before that insurance is huge. It's part of the legal triad that I have talked about in the past for liability protection. The triad consists of contracts, business formation such as an LLC or corporation, and liability insurance.
Right now with all this going on with COVID, you want to make sure you have liability insurance for coverage should you have a client or customer who may claim that they have received COVID from your location, your staff, or yourself. Obviously, I'm not going to go into talking about proof and responsibilities and burden and all that here. Just understand that the goal of this list is make sure you're doing everything on the up and up if there's ever a potential claim.
Understand none of this list that I'm giving you is going to keep you out of hot water if you have COVID and you intentionally go to your location, if you intentionally ignore cleaning procedures, if you don't follow what you're supposed to do and you intentionally go while sick. That is not what we're talking about here. We're talking about if you didn't know you had it, you didn't have symptoms, or just by the mere sheer fact of people moving around in society that a client a customer tries to claim that they contracted it from your location. We want to make sure to check to see if we have liability insurance that could potentially cover in a situation like that.
Adhere to CDC requirements and/or advisement
Checklist item number three, we want to adhere also this CDC requirements and/or advisement. Contrast this from the very first thing on the checklist of identifying governmental directives. Those really point more towards who can be open, can't be open, how many people can be there, et cetera. However, on the CDC side, we're going to look at requirements and advisements pertaining to social distancing, six feet apart, masks, et cetera. There could be some crossover here between checklist item number one of government directives and checklist item number three of adhering to CDC requirements. Some states and locations are requiring that masks be worn in public and they are governmental directives. That also could fall under the CDC requirement and advisements. We want to look at both of these lists and institute them into our business. Identify the requirements and advisements and adhere to them.
Things to look for from the CDC:
- recommendations on wearing masks
- recommendations on wearing gloves
- maintaining six feet between people
- adhering to social distancing guidelines
- using proper cleaning techniques for your type of business
Keep up to date on the most recent information that they are putting out there. Put into your schedule to stay on top of being knowledgeable of all of this, because let's say a potential thing happens, a potential client believes that they contracted from you, we want to be able to say, "Well, we were adhering to CDC requirements. We were adhering to governmental directives."
We're trying to insulate you from liability, not just do the right thing. That is, I think common sense assumed in default here. We want to do the right thing, the legal thing, and the right thing to keep everyone happy, and healthy, and be able to continue doing business. But we're also looking for ways that we can help to insulate you or point to that you took reasonable steps to reduce any potential infection or spread of COVID.
Communicate your policies both directly to your customers and publicly
You have been seeing this since the very beginning when all of the COVID-19 shutdowns started happening. Companies kept sending mass emails talking about their policies, how they're going to interact with their customers, et cetera. You need to do the same. Even if you're personal services and you're very directly only working with one person like as a photographer in a photography studio, you still need to be communicating with your customers your policies directly to them and publicly. I suggest putting it into an email blast to your email list, putting it on your social media and on your website, but that's not enough.
I want you communicating directly with your customers or clients.
So let's say for example you have one-to-one customers or clients, make sure that they get a copy of the policy.
If customers/clients are coming into your physical location, post it on the wall. If you're going to their house, provide those policies to your customer prior to entering their space. Also, I strongly suggest that if you have a brick and mortar location such as a gym, you post these publicly. We want to have as many places to inform and communicate to the clients your policies. Your policies need to cover what you want to have, what you're enacting in your business, but also what you want them to comply with when you reopen your business after COVID. The consumer also has some responsibility in helping to adhere to all of these guidelines.
Use an assumption of risk or liability waiver
We have identified governmental directives for reopening your business after COVID, checked your liability insurance for coverage, adhered to CDC requirements, communicated with your clients your policies directly and publicly and last, but certainly not least on this list, you want to use an assumption of risk or liability waiver.
Now, understand this has kind of put the legal industry on its head a bit because in the past these waivers have generally been used for risky activities or high risk activities, such as going on roller coasters, skydiving, bungee jumping, and that sort of thing. The person engaging in the activities assumed the risk of that high risk activity. Well, we wouldn't necessarily think that just going down to the local retail shop to buy a pair of jeans would be a high risk activity.
But these waivers and these liability waivers are becoming more common.
A lot of business owners are requesting them. And frankly, a lot of consumers are starting to look to see what you have in place for these. Be wary here. I'm using the term of like assumption of risk waiver, liability waiver.
Understand that is a broad term.
That's a broad title of designation of this document. What is in the document is going to vary depending on what sort of lawyer drafted it, how they drafted it, and what they included.
We have put a release of liability waiver that's COVID specific on the COVID resource page. I strongly suggest that you inject it into your workflows right now to ensure that you are informing your clients or your customers. Let the know "Here's our policies, here's our procedures, but you're still assuming the risks you may potentially contract COVID if you engage in business/come into our location, or we enter into your home or your location. This is what you're assuming the potential risk of contracting COVID."
This is just one piece in these layers.
Think of it like hurdles. I always share the example like the movie Independence Day with Will Smith when they're shooting the alien spaceship, and you see the force field. I want as many force fields between you guys and potential liability. That's why we want to have that legal triad of the business formation, the liability insurance, and contracts.
You're going to have other contracts like services, et cetera, but in this case, this can also be an assumption of risk/liability waiver partnered with the communication of your policies. Obviously, you and your staff or team members need to be informed of this and also adhere to your set of policies and ensure that those coming into locations are also adhering to the policies outlined.
Final thoughts
I would not pick and choose this list. You need to use this checklist as a whole, because these are the buffers we want between you and liability. Should someone try to claim that they contracted COVID from your business, from your team members, from your product, from your service,
Use this checklist to show that you took the reasonable steps. You were forward thinking before reopening your business after/during COVID, and you care about your consumers.
You care about your team, and about your location. You've done what the government has put out, done what the CDC has put out. You have communicated that, and also the consumer assumed the risk by engaging in that business with you.
Again, don't forget to check out the resource page. I look forward to us having a seamless integration back into society, hopefully with no issues and no liability problems.