Written by: Brad Steele, J.D.
With club leaders, staff and members in the United States all anxiously awaiting the go-ahead from state officials to reopen, the question every club leader should be asking is, “How do I open without exposing my club to potential liability from someone alleging he contracted the virus at my facility?” The short answer is – carefully.
To begin, you first must look to state and local health department reopening guidelines. These will provide specific guidance on what can be done in your state. Flouting these guidelines could lead to members raising concerns and local enforcement officials making an “example” of the club.
Then, you must look to comply with requirements from the Occupational Safety and Health Administration (OSHA). Thankfully, there are no specific OSHA standards (or workplace guidance) for private clubs; however, there is the General Duty Clause.
OSHA’s General Duty Clause states that an employer shall furnish each worker with a workplace and work that are free from recognized hazards causing, or are likely to cause, death or serious physical harm. As such, club leaders must ensure the club and the work performed by their staff is protected from COVID-19 to avoid OSHA violations and penalties.
To date, there have been over 14,000 OSHA complaints filed by employees claiming they work in an unsafe environment due to the outbreak. Thus, it is imperative that club leaders are prepared to follow OSHA guidelines to help insulate the club from these kinds of claims.
OSHA has established four basic areas for club leaders to focus on during the COVID-19 pandemic:
1. Develop a COVID-19 preparedness and response plan.
2. Implement basic infection prevention measures.
3. Develop policies and procedures to keep the club healthy.
4. Implement workplace controls.
Failing to meet OSHA requirements could bring federally mandated penalties, unwanted publicity and public scrutiny on the club, all while fostering an image that your club does not care about its workers. This is not an image the club would want to perpetuate. OSHA’s full guidance can be found here.
Even as you work to satisfy your state’s reopening guidelines and OSHA’s requirements, there is another liability hurdle to overcome – negligence. To defend against a negligence claim, club leaders must show that they have done what a reasonably prudent person would do under similar circumstances. Complying with state guidelines and with OSHA guidance are good ways to show you are acting reasonably. When gray areas arise, it is also best to err on the side of being too cautious rather than not enough.
Of course, another way to limit liability is to require members to sign waivers before using the club. I have worked with the Club Management Association of America (CMAA) to help create a template for clubs to offer their members. However, the plain truth is that not all of your members will sign it. More importantly, if they are in compliance with their membership agreement they likely cannot be forced to do so.
Additionally, you cannot force an employee to sign anything that waives protections under federal law (like OSHA requirements). Also, if you require an employee to sign a waiver before rejoining the staff it could raise questions about how truly voluntary that signature was – and provide a basis to object to that waiver if it is enforced.
Though waivers can be an effective way to minimize liability, club leaders must understand that waivers may be challenged in court and the lawsuit they hope to avoid may still be filed. As such, they are not always the panacea they are made out to be.
Though some state governments have provided businesses with immunity for these legal liability issues, Congress has been unable to do so. Until that changes, the only true way to maximize your protection is by doing the hard work before opening.
It should be expected that an outbreak will occur at your club and that someone (staff or member) will fall ill. However, if you reopen with a plan that follows guidelines set forth by state and federal governments, and you conduct your actions as a reasonable prudent person would do, then you increase your chances of successfully navigating any claim that may result.
Thus, before you reopen, be ready to do it right. It will not be easy (and you will have to stay vigilant long after you reopen) but if you can start on the right foot, your first day back should be a safe one.
Brad Steele, J.D. has 15 years of experience in the private club industry and is founder of Private Club Consultants (PCC), which provides in-depth legal and operational answers for private clubs in America.