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Survival of the Fitness

You opened a gym, studio or box and you were cruising along until March 2020 when everything came to a screeching halt. When the COVID-19 pandemic took hold in the US it sent everyone scrambling to figure out how to keep moving forward. Will your business close, will you lose everything, how will you pay rent, how will you pay employees, what happens to your clients or members? These are just some of the questions I heard across the fitness community in March. Luckily for all of us, we are nearly four months past that initial impact of COVID-19 and we have somewhat of a handle on what needs to happen to continue to produce in the fitness industry. It feels like only the fit will survive this new normal, which includes doing all the things contained in this blog.

If you are lucky, you have a business coach or a team of professionals who are paid to handle crises and to help you pivot in the new normal. These people will go a long way to helping you to save your business. Listen to their advice and get everything in place before you consider opening. If you are shut down again by the state, listen to their warnings and return to your virtual classes. The advice should be throughout to keep rocking that hybrid model of in person and virtual classes until we have this figured out or forever, whichever suits you.

But what happens when everything keeps changing on a daily basis. The industry is so broad that it is difficult for people outside of the FitPro community to understand the differences in personal training, studios, big boxes, equipment, members, all access, group training, etc., etc. The broadness is what is causing headaches for leaders trying to reopen cities, counties and states. How do you make a rule for the small personal training studio that is not manipulated by the big box gym to serve their own purposes. Many states have taken one of two paths, either open it all up at once or keep everything locked down.

For instance, in New York, gyms were supposed to be included in Phase 3, until they weren't. Maybe Phase 4 will be the winner....nope not then either. So what do you do when the plan you've so carefully put in place is no longer allowed to be implemented? Well simple, you figure out the new game plan and you pivot again. There is no way to understand what will happen with the spread of the virus when gyms re-open and an abundance of caution is being used in New York. But where does that leave the small gym owner, for the moment it leaves them virtual or while the state remains closed, they did throw a bone to allow outdoor training to begin. Ideally, you have been able to maintain your clients and they are supporting this new transition from no classes or virtual classes to outdoor training.

Don't get me wrong, I am a fierce advocate for the fitness community. You are getting a raw deal and the level of unfairness is staggering. But as a small business owner, you do not want to make national headlines (I'm looking at you Planet Fitness, Morgantown, WV) for being the gym that opened without proper protocols leading to a massive outbreak among your clients. It is better to take things slowly and work within the guidelines. It is also better for your clients to see that you follow the rules to do what is best for them than to have the short term gains of a quick unprepared re-open. Or worst case scenario, if you are fined and shut down by authorities, everyone will know that you didn't follow the rules making it a harder sell that you follow the other rules, like cleaning protocols and reporting.

So what does this all mean legally? Part of your re-opening plan should include a waiver of liability that your client signs when they come back to the gym. It should include indemnification of any claim they may have against you for contracting the virus or anything else while at the facility. You want to clearly spell out what your cleaning protocols are but leave the medical advice and information to the medical professionals. Keep it short and simple so you are not exposing yourself to other liabilities by providing advice you are not qualified to provide. That means you are not spelling out how the virus spreads, what you think the virus will do in the gym, or anything else related to transmission, symptoms, or spread. If it sounds like a doctor should say it, you should not.

You also want to make sure you are taking temperatures and asking about contacts and symptoms within the last 14 days. This is for contact tracing and is separate from the waiver. The temperatures should be maintained in records and a verbal response is sufficient to the screening questions prior to entry. Make sure you do not skip this step because you do not want that headline that someone is sick in your facility and you weren't doing the right things to prevent or slow the spread. It is of course not their fault if they do become sick and there should be no shame attached to that. It is about knowledge not shame or blame. The goal is to avoid someone getting sick or spreading it throughout your facility.

But what happens if someone becomes sick who has been to your facility. HIPAA and the ADA should be used as guideposts for how this is handled. HIPAA does not directly apply to you for either members or staff, but you want to be cognizant of the fact that you do have some protected medical information and it should not be shared unless necessary. Following HIPAA guidelines is always the best rule of thumb. The ADA does apply to you with staff and those guidelines should be closely followed.

If you do have a member become sick, the proper protocol is to send the information to the health department or proper agency to ask for further guidance and for contact tracing. Do not release the member's name, but you will likely have to issue a statement that someone was sick who attended the facility on certain days and times based on the health department guidance. If appropriate, the health department should follow their contact tracing protocols and notify those individuals as necessary. Be sure to comply with all of their requests for information.

If an employee becomes sick, you are bound by the ADA, therefore you can alert the necessary authorities but you cannot tell the public who the staff member is or any additional information. You should again follow proper protocol as provided by the health department. If there is none, alert the facility that someone has tested positive without any other identifying information expect for dates and times present.

If anyone is positive, implement your cleaning protocols to limit your liability and ensure that you are doing everything you are supposed to, including closing for a few days if necessary. This will help in the slim chance someone files a claim against you for exposure in the future. Having that signed waiver will also go a long way towards limiting liability.

Just be smart and make sure you have everything in place to protect yourself. If you need assistance with waivers, contracts, or plans, feel free to schedule a consult with Ingram Law Firm FitPro.

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