May 19, 2020

Partner Eric Johnston, a member of the firm’s Employment Practice Group, provided insight about possible litigation and steps gyms should take as they reopen in the coming weeks. The article, Legal questions to mind as gyms and other fitness centers reopen, was published by the Austin Business Journal online Monday, May 18, 2020.

Gyms across Texas – including Planet Fitness and OrangeTheory – began opening this week after being closed for months due to COVID-19. Yoga studios and climbing centers are also planning to reopen early next month with limited capacities and heightened safety precautions.

One of the biggest issues for gyms and other fitness/health related businesses is legal liability. Despite lobbying by Senator Mitch McConnell for liability protections for businesses as part of any future federal stimulus package, the issue remains unresolved.

Johnston advised gyms to closely follow the minimum standard health protocols checklist created by the state for gym reopenings. Those include social distancing, frequent cleaning and disinfecting of the business, providing cleaning products for use on equipment, making hand sanitizer available for staff and clients, and conducting screening of employees before allowing them to work.

Johnston was also quick to note that the state’s checklist explicitly covers “minimum recommended health protocols,” but he advised businesses to exceed those minimums, taking extra steps as needed to further protect themselves from litigation. One step he said gyms should consider is potentially revoking the memberships of those who don’t follow social distancing rules or other safety guidelines.

"That checklist is minimum standards; that should be the floor that they use," Johnston said.

While it’s impossible to know exactly how vulnerable gyms might be to lawsuits after reopening, Johnston predicted there will be "a lot of lawsuits" without some form of intervention. He pointed to lawsuits throughout the country surrounding essential businesses such as meat-packing facilities and prisons, as well as a lawsuit filed against a health care facility in Travis County by the family of an essential health care worker who died of COVID-19.

It will be very difficult to hold businesses liable if they follow recommended safety precautions, Johnston counseled. But uncertainty remains because of a dearth of case law surrounding the business response to a pandemic.

"If I were to walk into a grocery store and have a box fall off a high shelf and injure me, we have case law for that," Johnston said.

"I think the biggest threat is the negligence of the facility," Johnston added. "You want to make sure that you have those policies and procedures in place so that the employees know they have to keep the gym at less than 25 percent [occupancy], that they're disinfecting, that they're making sure people are social distancing ... all of those things that the governor's order lays out."

To read the article, click here.

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