As affiliates begin reopening all around the world, many are choosing to have their members sign an updated waiver that lets them know they’re taking a risk by going to the gym during the ongoing worldwide pandemic.

Jeremy Brassard, the owner of Armor CrossFit in Ocoee, FL, explained while he’s not worried about his members getting sick from his facility, experience has taught him he should cover all his bases.

• “(I) just wanted to go over the top…I was a cop for five years and was wrongfully sued twice, and it’s just a huge pain in the butt. This way, there’s no chance,” Brassard said.

So he reached out to a local lawyer, who drafted a new waiver for his gym to add a clause about the COVID-19 risk.

Ben Owen, the owner of PXM CrossFit in Chicago, IL had a similar thought.

• “Best defense of any situation gone bad is a waiver…It’s just smart to have another tool in our proverbial tool bag of preparation for liability. I am realizing it’s a gap (in our old waiver), that maybe I should have always had a disease transmission-based, or force majeure clause, in the waiver,” Owen said.
• “Mine will be added to our standard waiver and clients will be asked to resign. For us, (this) has zero relevance to our decision to open up, but is just part of a series of barriers and hurdles for protection against any worst-case scenario.”

Is a waiver really necessary?

Attorney Daniel Nides, J.D, offered his opinion: “It’s probably a good idea.”

• “It’s definitely not necessary, but it would be fairly silly not to. It’s the easiest and most familiar way a business can take the first step in any potential liability exposure claims,” said Nides, a lawyer in MN.
• “Some gyms’ waivers might already include a (statement) that protects against physical illness, injury or boldly harm, so there’s an argument that this could include (COVID-19), but we’re playing in a new field right now. There’s no precedent,” he added.

In other words, it’s not clear whether COVID-19 exposure or infection would be covered under the terms of an existing waiver, Nides explained, so it’s a good idea to add a COVID-specific clause in your waiver.

Waivers in the court of law: There has been some debate among affiliate owners in various online forums about whether or not waivers actually protect a gym owner should someone file a claim.

They often can and do, Nides said.

• “Most jurisdictions across the U.S. will enforce liability waivers. Thus, a waiver is a great first line of defense in protecting oneself from liability arising out of COVID-exposure (or) infection claims,” he said.

A waiver may not protect you, however, if your business has been seen to have intentionally acted recklessly, or is considered to have been grossly negligent. In the case of COVID, if a coach, for example, knew they had COVID-19 and went to the gym and coach anyway, this could be perceived as being grossly negligent, Nides explained.

• “So questions of liability associated with COVID will be viewed on a case-by-case basis,” he said.

How to draft a COVID waiver: Nides recommends a COVID waiver to incorporate some sort of educational statement of what COVID is, how easily it can be contracted, and that you’re at risk of contracting it at the gym, either from an employee or another member.

Further, Nides said:

• It must be drafted in a way that the customer knows and understands the risk.
• It should explain why going to the gym increases that risk.
• And, it should include the rights members intend to waive.

Luca Citton, Managing Partner at Boughton Law Corporation in British Columbia, also advises gyms to include “all the measures the gym is taking to keep the client safe,” he said. This could include how they’re maintaining social distancing, their cleaning policies, as well as describing the behavior they expect from the client.

Two further tips from Citton:

• The waiver should provide the legal language absolving the gym from any liability if the client should contract COVID while at the gym, and any subsequent damages that result, such as loss of work.
• “I would also recommend that the waiver be set up so that the client either signs below each of the sections or at least is asked to initial each section. This makes it difficult for the client to later say they didn’t see the particular section as they would have had to have initialed it,” he said.

Review your insurance policy: Citton also recommends gyms review their insurance policies with their broker to see if any COVID loss is covered by their general commercial liability insurance policies.

• “If not, they may want to investigate if such a policy is available,” he said.

Customize your waiver: While a gym owner could just go online and peruse the internet for an appropriate waiver, Nides recommends a more customized approach.

• “If you really want to cross all the T’s and dot all the I’s, then you should reach out to (your) local council and have them draft something specifically for your gym,” Nides said.
• “A lot of courts look at whether your waiver is really tailored for your business as a factor.”

Disclaimer: This post was created for general informational/educational purposes only. The information is not privileged and does not create an attorney-client relationship with the author. Nor is the post an offer to represent you. Its information should not be construed as legal advice or legal opinion on any specific facts or circumstances. You should not act or refrain from acting based upon any of the information on this site and are urged to consult a licensed attorney for legal advice on your specific situation.

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