SAFETY FIRST!10 Strategies To Create A Safety

Culture In Your Fitness Facility

JoAnn M. Eickhoff-Shemek, Ph.D., FACSM, FAWHP

Professor Emeritus, Exercise Science

University of South Florida, Tampa Campus

eickhoff@usf.edu

&

President, Fitness Law Academy

www.fitnesslawacademy.com

drjes2014@gmail.com

November 2019Orlando, FL

What is Safety Culture?

Safety Culture:

➢ A set of core values and behaviors that emphasize safety as an overriding priority

➢ Expressed through what is said and done – through behavior

Taken From: https://www.slideshare.net/AubreyDaniels/7-keys-for-creating-a-safety-culture

Assessing Safety Culture in Your Fitness Facility

Employee Safety Culture Survey➢ See sample survey

(20 Statements)

➢ Completed anonymously by employees

➢ Aggregate results shared/discussed at staff meetings

➢ Create an action plan to make improvements

➢ Complete survey again after 6 months to evaluate progress

Creating a Fitness Safety Culture:Make a Commitment

➢ Establish a Mission Statement:

➢ The mission of ________________ (name of fitness facility) is to provide reasonably safe programs and services to our participants. We consider the safety of our participants our most important responsibility. We believe that these efforts also result in the delivery of high-quality programs/services that will lead to increased satisfaction and retention among our valued participants (1).

“General” Legal Duty of Fitness Managers

and Exercise Professionals:

To provide “reasonably safe” programs

and facilities for their participants.

Reasonably safe involves taking precautions (developing and implementing risk management

strategies) to help prevent “foreseeable” risks of injury.

Risk Management focuses on injury prevention – it’s

PROACTIVE, NOT REACTIVE

Types of Injuries Incurred by Plaintiffs in Negligence Lawsuits

(Foreseeable Injury Risks)

Type of Injury Negligence Lawsuit

1) Massive stroke Vaid v. Equinox

2) Fractured ankle Corrigan v. Musclemakers, Inc.

3) Exertional rhabdomyolysis resulting in

30% loss of muscle tissue in both

quadriceps

Proffitt v. Global Fitness Holdings,

LLC, et al.

4) Serious back and neck injuries Stelluti v. Casapenn Enterprises, LLC

5) Catastrophic head injuries Jimenez v. 24 Hour Fitness

6) Hip injury requiring surgery Crossing-Lyons v. Town Sport

International, Inc.

7) Herniated cervical discs, surgery to

decompress and fuse cervical discs

Baldi-Perry v. Kaifas and 360 Fitness

Center, Inc.

8) Cardiac arrest resulting in death Locke v. Life Time Fitness, Inc.

Overview of Negligence

DefinitionNegligence is “failing to do something” that a reasonable,

prudent professional would have done or “doing something”

that a reasonable, prudent professional would not have done,

given the same or similar circumstances.

Negligence is “careless” conduct by either

OMISSION or COMMISSION

Failure to Perform Improper Performance

Fault Basis of Tort Liability (1)

Four Elements of Negligence:Plaintiff has the Burden of Proof (1)

Compensatory Damages – plaintiff seeks monetary (compensation) damages: Economic (e.g., medical expenses, lost wages) Non-economic (e.g., pain and suffering)

Punitive Damages – plaintiff seeks “additional” damages for gross negligence

Causes of Injuries –

from a Legal Perspective

Inherent Risks -- no one’s fault; they just happen (inseparable from the activity)

Ordinary Negligence -- the fault of the facility/personnel (e.g., failure to meet the standard of care due to “careless” conduct – omission or commission) and/or the fault of the participant (e.g., misuse of exercise equipment)

Gross Negligence – also referred to as willful/wanton conduct or reckless conduct (defendant has prior knowledge of risk and does not take steps to correct it; risk is clearly foreseeable)

Product Defects/Product Liability -- the fault of the manufacturer due to some type of defect in the product, e.g.,design, manufacturing, or warning defect

Fitness Safety Issues:7 Major Areas

#7 Emergency Action Plan

#1 Employment

Issues

#2 Pre-Activity

Health Screening and Fitness Testing

#3 Exercise

Prescription and Scope of

Practice

#4 Instruction and

Supervision

#5 Exercise

Equipment

#6 Facility Issues

Why Focus on Instruction and Supervision?

Highly experienced expert witnesses Harvey Voris and Dr. Marc Rabinoff state that over the last 20-30 years the cases brought against fitness facilities consistently involve one or more of the following:

• Failure to instruct on how to use the equipment safely

• Failure to hire qualified staff or personnel

• Failure to supervise the use of the equipment in the facility (2)

Internationally known legal scholar, Betty van der Smissenstated:

“the lack of or inadequate supervision [meaning instruction and supervision] is the most common allegation of negligence” (3, p. 163)

Fitness Facility Manager = Risk Management (Safety) Manager

➢ Fitness managers have the overall responsibility to help ensure the safety of all participants and have a vested interest to do so because of:

➢ Vicarious Liability:

➢ Employers can be held liable for the negligent acts of their employees – legal doctrine respondeatsuperior

➢ Direct Liability:

➢ Employers can be held liable for failing to properly hire, train, and supervise their employees

Instruction and Supervision

General Instruction: For Participants

Specific Instruction: Fitness Instructors

“General” Instruction/Supervision Provided to Participants

➢ Fitness Facility Orientation

➢ Staff Supervision of Fitness Floor During all Operational Hours

➢ General supervision, e.g., staff members observe activities to help ensure individuals are using equipment properly and following safety policies (3)

➢ Specific supervision, e.g., staff members provide “individual instruction” on how to use equipment properly when they see someone misusing the equipment (3)

NOTE: Training staff members on how to properly and professionally communicate with participants is essential, e.g., reminding participants of safety policies

Standards and Guidelines Published by Professional Organizations: Facility Orientation -- Examples

➢ ACSM’s Member Orientation, Education… Standard #1: (p. 29)

Once a new member or prospective user has completed a preparticipation health screening process, facility operators shall then offer the new member or prospective user a general orientation to the facility.

➢ MFA’s Pre-Activity Screening Guideline #11: (p. 25)

All facility users should be offered an initial orientation to the facility, the facility’s equipment, basic program concepts, and emergency/safety guidelines.

Facility Orientation:10 Strategies

Strategy #1: Inform New Members and Participants of the Purpose of the Facility Orientation:

▪ Content to be Covered:

▪ Instruction on Proper Equipment/Facility Use

▪ Review of Important Safety Policies/Signage

▪ Instruction on “Safe Principles” of Exercise

▪ Information about Programs and Staff

▪ Major Focus -Their Safety

▪ “We Care” philosophy – your safety is our #1 priority

▪ We created a “Safety Culture” so all members benefit (starts with your participation in our Facility Orientation – thank you for attending today!)

Strategy #2: Provide Instruction on the

Proper Use of the Exercise Equipment

▪ Not feasible to provide instruction on all the exercise equipment in a Facility Orientation

▪ Demonstrate/teach proper form on “selected” cardio and resistance equipment

▪ Review the “warning labels” on the equipment

▪ Review the instruction placards – placed on the equipment or next to it

▪ Explain how to obtain more information

▪ Ask our Facility Staff Members

Warning Label Taken From: CybexEagle Chest Press Owner’s Manual

Strategy #2: Provide Instruction on the

Proper Use of the Exercise Equipment – Cont.

In Thomas v. Sport City, Inc., the court stated:

“members of health clubs are owed a duty of

reasonable care to protect them from injury while

on the premises…[This duty] necessarily includes a

general responsibility to ensure that their members

know how to properly use gym equipment”

Thomas v. Sport City, Inc. 738 S.2d 1153 (La Cir., 1999, p. 1157 ).

Strategy #3: Review the Posted Fitness Facility Safety Sign

ASTM Standard F1749 (4)

Strategy #4: Review the Posted Facility Safety Policies

Example: Fitness Center Policies▪ Return equipment such as dumbbells and exercise balls back to their storage racks after use.

▪ No personal equipment is allowed in the facility, e.g., gym bags, purses, exercise equipment, etc. Lockers are available to store personal belongings.

▪ Proper workout attire is required. Shirts must always be worn. Closed toe athletic shoes must be worn in the Fitness Facility.

▪ Please wipe down equipment after use. Disinfectant wipes are provided throughout the facility.

▪ No one under the age of 16 is permitted in the Fitness Facility without parent/guardian supervision. No one 13 or younger is allowed to use the Fitness Facility unless enrolled in one of our youth programs.

▪ No food or chewing gum is permitted in the Fitness Facility. Water bottles are allowed.

▪ Please be courteous of others using the Fitness Facility and always display appropriate behavior.

▪ Cell phones must be turned off or put on vibrate. Do not use a cell phone while performing any exercises. No photos are allowed anywhere without the permission of management.

▪ Follow all signage that is posted on the equipment and throughout the Facility.

NOTE: Include these Safety Policies in your membership contract and the consequences of not following them -- reinforced again in the Orientation.

Strategy #5: Review other Safety Signage

Posted in the Facility

▪HR and RPE Charts

▪Facilities:▪Swimming Pool▪Hot Tubs/Spas▪Saunas▪Locker Rooms

▪Emergency ▪Evacuation Plan▪AED

▪Outdoor Exercise Precautions▪Weather (heat and cold)▪Safety

Strategy #6: Provide Instruction on Safe Principles of Exercise

▪ Provide a Written Resource

▪ Handout/Booklet

▪ Info on Facility’s Website

▪ Highlight “key” safety principles in the written information such as:

▪ Warm-up/Cool-down

▪ Progression/Overload

▪ Monitoring Intensity (Refer to HR and RPE charts posted in Facility)

▪ Signs/Symptoms of Overexertion

▪ Risks of Exercise/Precautions

Strategy #6: Provide Instruction on Safe Principles of Exercise – Cont.

Why?Case Examples: Negligent instruction regarding (a) the importance of

proper cool-down and (b) appropriate progression and exercise intensity:

▪ In an article (6) by Dr. Anthony Abbott, he describes several negligent lawsuits in which the plaintiff’s cardiac arrest was likely due to the failure of the fitness staff to carry out their legal duty to orient/educate the plaintiff on the (a) importance of proper cool-down and (b) concept of blood pooling (5).

▪ In addition, there are numerous injury cases involving exercise intensity being too high, given the individual’s health/fitness status. duty.

Question: Are your personal fitness trainers and

group exercise leaders teaching safe principles

of exercise to their clients and participants?

Strategy #6: Provide Instruction --Safe Principles of Exercise – Cont.

Benefits of Providing a Written Resource ▪ For fitness members/participants:

• They learn about safety principles and why they are important.

• The information can be presented in a user-friendly format –easy, quick to read and understand.

• The information reinforces your priority of providing a “safety culture.”

▪ For fitness professionals and facilities:

• Provides important information to review with new members/clients during Facility Orientations – a unique benefit to your facility.

• Helps minimize legal liability by carrying out your legal duty to provide proper instruction – the written resource can serve as evidence in negligence claims/lawsuits.

Strategy #7: Describe Programs and Services Offered

▪ Types of Programs

▪ General Population – apparently healthy, low risk, beginner classes

▪ Special Populations – at risk, persons with medical conditions, disabilities

▪ High Fit/Recreational Athlete

▪ Qualifications of Staff Members

▪ Professional Staff – degree(s), professional certifications

▪ Personal Trainers/Group Exercise Leaders/Floor Supervisors

▪ Unique Features/Opportunities

▪ Connections/partnerships with community

▪ Participation in national campaigns/efforts to promote PA

Exercise Prescription

FROM: CDC https://www.cdc.gov/chronicdisease/about/index.htm

Types of ParticipantsExercise Prescription Continuum

Poor Health/

Medical Conditions

Good Health and

No/Minor Medical Conditions

Chronic

Disease(s)Muscular-Skeletal Conditions

Moderate or High

Risk

Inactive,Low Risk

Regularly Active

Recreational Athlete

Strategy #8: Develop/Implement Staff TrainingStaff Members Who Will Lead the Facility Orientations

▪ Ensure Quality Instruction

▪ Develop a Written Lesson Plan

▪ Checklist

▪ Conduct In-Service Staff Training

▪ Have Staff Members Lead a Mock Facility Orientation Session

▪ Evaluate Staff Member’s Performance

▪ Document In-service Training Session and Evaluation of Performance

▪ Retain documentation – evidence of the education/training program

Strategy #9: Prepare Documentation Following Each Facility Orientation*

1. List of members/participants who attended and the date

2. Lesson plan (Checklist) -- Completed, signed and dated by instructor

3. Acknowledgement – Signed by member/participant affirming their attendance and agreement to follow the instruction provided in the orientation.

*Keep documents stored in a secure place – can serve as future

evidence to help refute negligence claims/lawsuits!

Strategy #10: Develop/Implement a Refusal Form

▪ Some members/participants may not want to attend one of your Facility Orientations

▪ Have them read and sign a “refusal form” that describes:

▪ Purposes of the orientation

▪ Benefits of attending a facility orientation

▪ Potential risks of not attending a facility orientation

▪ For an example refusal form, see:

Risk Management for Health/Fitness Professionals: Legal Issues and Strategies (1, p. 234).

▪ Document/Store the Refusal Form

Benefits of a Facility Orientation

▪ Major Benefits -- Protects the Staff/Facility

▪ Helps to create a “safety culture” -- reduces injury and subsequent litigation

▪ If an injury/lawsuit occurs, provides evidence to refute “common” negligent claims/lawsuits

▪ Additional Benefits for Facilities

▪ Demonstrates to your members/participants your commitment to their safety – a benefit they will appreciate

▪ Excellent opportunity to initiate a positive relationship with new participants

▪ Creates professional environment/enhances the fitness profession (follows professional standards and guidelines)

▪ Is “proactive” (not reactive)

▪ Minimizes complaints among members/participants – they are happy/satisfied customers

▪ Staff members are not spending time “putting out fires”

Specific Instruction/Supervision Provided by Fitness Instructors*

Employer/Management General Legal Duty:

❖ Properly Hire, Train, and Supervise Fitness Instructors

❖ Essential to help ensure members/participants are receiving safe and effective instruction and supervision

*Fitness Instructors:

Group Exercise Leaders

Personal Fitness Trainers

Fitness Floor Supervisors

Case Example – Hire, Train, SuperviseBaldi-Perry v. Kaifas and 360 Fitness Center, Inc.*

The List of Negligence Claims - Trainer and Facility:

26 claims against the trainer such as:(1) Failed to perform proper health appraisal and fitness evaluation

(2) Failed to meet the representations made to the plaintiff

(3) Failed to distinguish exercises that were safe from those

that were dangerous

16 claims against the facility such as:(1) Failed to hire properly trained personal trainers

(2) Failed to ensure trainers conduct proper health appraisals and fitness

evaluations

(3) Negligently hired trainers who were not qualified to design exercise

programs for individuals with injuries

*Baldi-Perry v. Kaifas and 360 Fitness Center, Inc. In: Herbert DL. New York case against personal trainer results in $1.4 million verdict. The Exercise, Sports and Sports Medicine Standards & Malpractice Reporter. 2015;4(4):49, 51-55.

Baldi-Perry v. Kaifas and 360 Fitness Center, Inc.

Court’s Ruling:

Jury verdict against the trainer and facility:

$1.4 million

Plaintiff was awarded $980,000 due to her being 30% at fault (New York comparative negligence rule).

NOTE: Employers have a vested interest to hire “credentialed” and

“competent” employees due to the legal principle -- respondeat superior

(vicarious liability -- a form of strict liability) and “direct” liability.

Risk Management Strategies for Hiring,

Training, and Supervising Fitness Instructors

❖ Risk Management -- a proactive administrative process that

will help minimize legal liability exposures (e.g., foreseeable risks)

for exercise professionals and the organizations they represent

(employers)

❖ Utilizing risk management strategies when hiring, training, and

supervising fitness instructors helps ensure that members/participants

receive “safe” and “effective” instruction.

Hiring “Credentialed” and “Competent” Fitness Instructors

Have you ever made a poor hiring decision?

Hiring “Credentialed” and “Competent” Fitness Instructors

Never assume that if someone possesses a certification, even an accredited certification, that

they are “competent”❖ For example, no formal education and practical training is

required prior to taking a certification exam (written only exams) for groups exercise leaders and personal fitness trainers.

Courts will judge the “conduct” of the fitness instructor

Credentialed = CompetentCrendentialed Employee: Possesses Credentials, e.g.,

degree(s), certification(s)

Competent Employee: Knows How to Perform the Job Properly, e.g., design and deliver “safe” and “effective” exercise programs

The Importance of Practical Skills

and Competence from a Legal Perspective

Lack of Practical Skills

Inactions and Improper Actions

Breach of DutiesBreach Caused

Injury Negligence

The Connection Between the Lack of Practical Skills and Legal Liability

Incompetence = Improper Conduct = Breach of Duty

Hiring “Credentialed” and “Competent” Fitness Instructors – Cont.

The Credentials:

❖ Establish standards that reflect the minimum or required “credentials” for each job

❖ Understand the many potential limitations of credentials (degrees, certifications) in the field

❖ Evaluate their “type” of work experience –pros and cons

❖ Criminal background checks – for staff members such as personal fitness trainers, massage therapists, and especially those working with vulnerable populations such children, older adults, and those with disabilities.

ACSM’s Health & Fitness Journal (May/June 2007)

Hiring “Credentialed” and “Competent” Fitness Instructors – Cont.

Interview Strategies:1) Establish questions in advance, e.g., questions

that will help determine their knowledge and skill levels and situational questions that address fitness safety

2) Have candidate teach a mock group exercise class or a mock training session

3) Inform them of the job expectations and how their performance will be evaluated

❖ Obtain their opinion/feedback on your performance appraisal tool

4) Evaluate their interview performance

Training Fitness Instructors

❖ Initially Upon Hiring

❖ Given the credentialing dilemma, may want to have your own “in-house” formal education/training programs for all new hires; Focus on Practical Training

❖ Review sound principles of exercise that employees are required to follow

❖ Review the content covered in the Facility Orientation

❖ Review facility safety policies and procedures including “scope of practice” policies/procedures that staff members need to follow

❖ Focus on a “safety culture” – the #1 responsibility is the safety of participants

❖ Review legal duties (e.g., review negligence and case law examples)

❖ Regular In-Service “Safety” Trainings and at Staff Meetings

❖ Review/discuss safety policies and procedures

❖ Focus on strategies to continually enhance safety

Training Fitness Instructors – Cont.

Managers Need to be Excellent Educators:Possess Pedagogy Skills

Stages for On-the-Job Training (6)

❖ Teach:

❖ What

❖ How

❖ Why

Training Fitness Instructors – Cont.

Benefits of Training Outweigh the Costs (1)

Supervising Fitness Instructors

❖ Informal

❖ Providing feedback on the spot – right after observing a job function that was performed improperly

❖ Obtaining feedback from clients/participants, e.g., written evaluations

❖ Formal

❖ Performance Appraisal Tool (PAT) that establishes performance standards (expectations)

❖ Direct observation/evaluation of performance (using the PAT)

❖ Formal feedback

❖Discuss evaluation – strengths/areas of improvement

❖ Action plan for areas needing improvement

❖ Timeframe

❖New employees -- at least twice during probationary period

❖ All employees – once per year

Supervising Fitness Instructors – Cont.

Performance Standards (7)

❖ Behavior-based Specific behaviors or conduct

❖ Trait-basedSubjective characteristics such as attitude and initiative

❖ Results-based Accomplishments

ACSM’s Health & Fitness Journal

(January/February, 2006)

Supervising Fitness Instructors – Cont.

Performance Appraisal Tool (PAT) – Group Exercise Leaders Helps to objectify the evaluation process -- all fitness

instructors are evaluated using the same standards

Supervising Fitness Instructors – Cont.

Performance Appraisal Tool (PAT) – Group Exercise Leaders Available as a Word Document – eickhoff@usf.edu

(can be adapted for personal trainers)

Documentation of Hiring, Training, and Supervising Procedures

❖ Maintaining Good Records – Can Serve as Evidence in Defending Negligence Claims/Lawsuits

❖ Documentation helps demonstrate you did not breach your duties to properly hire, train, and supervise your fitness staff members

❖ Documentation helps demonstrate you made a concerted effort to focus on injury prevention – you had a plan that focused on implementing a “culture of safety” within the facility

Quote from George Robotham*

Safety Advocate

“A health and safety problem can be described by statistics but cannot be understood by statistics. It can only be

understood by knowing and feeling the pain, anguish and depression and shattered hopes of the victim and of the wives,

husbands, parents, children, grandparents and friends…”

Know safety, no injury. No safety, know injury.*

~Author Unknown

*Taken From: http://info.basicsafe.us/safety-management/blog/14-quotes-to-strengthen-your-safety-culture

Safety is the #1

Responsibility of All Fitness

Managers and Exercise

Professionals

COMING JANUARY 2020:

Fitness Safety Column

First One Titled:Top Five Reasons to Make Fitness Safety Priority #1

This Column will be Published Three Times/Year:

Jan./Feb.May/JuneSept./Oct.

The Journal is Published Six Times/Year

References

1. Eickhoff-Shemek JM, Herbert DL, & Connaughton DP. (2009). Risk Management for Health/Fitness Professionals: Legal Issues and Strategies. Baltimore MD: Lippincott Williams & Wilkins.

2. Voris HC & Rabinoff M. (2011). When is a standard of care not a standard of care? The Exercise Standards and Malpractice Reporter, 25(2), 20-1.

3. van der Smissen B. (1990). Legal Liability and Risk Management for Public and Private Entities, Vol. 2. Cincinnati, OH: Anderson.

4. ASTM, Standard Specification for Fitness Equipment and Fitness Safety Signage and Labels, F 1749. (2015). West Conshohocken, PA: ASTM International.

5. Abbott A. (2013). Cardiac arrest litigations. ACSM’s Health & Fitness Journal, 17(1), 31-34.

6. Mathis RL & Jackson, JH. (2003). Human Resource Management. 10th ed. Mason, OH: Thomson South-Western.

7. Eickhoff-Shemek JM & Selde S. (2006). Evaluating group exercise leader performance: An easy and helpful tool, ACSM’s Health & Fitness Journal, 10(1), 20-23.

Thank You!

QUESTIONS?

For more information contact:

JoAnn M. Eickhoff-Shemek, PhD

Fitness Law Academy, LLC

Website: www.fitnesslawacademy.com

E-mail: drjes2014@gmail.com

or

eickhoff@usf.edu

Stay informed of fitness

safety and legal/risk

management issues?

Subscribe to our “free”

quarterly newsletter at:

www.fitnesslawacademy.com