We’ve written about Liability Risks that fitness professionals face and highlighted that websites can open a fitness professional up to liability risks that go beyond those that a face to face trainer may be at risk for liability. Let’s talk about the legal risks and issues that need to be considered for fitness professionals are working with clients online.
What is online training? In this context, the discussion is limited to those who are working only through web based on online means. It might include a website, online personal training, articles with advice or information. For a specific discussion about fitness professionals’ blogging, see this post.
Business Licensing and Interstate Commerce.
What are the reasons that you have chosen for forming your business in the State that you chosen? Where does your business need to be registered as a foreign entity? Are you conducting interstate or international commerce without even realizing it? Specifically, you might be wise to include disclaimers with regard to the state or country of residence of potential or intended clients. This is for two reasons: ambiguity on where you are operating may open you to litigation in a state where it will not be favorable to you, and secondly, a state where you would be required to be licensed or registered to operate your business. Be also aware that different states handle sales tax or gross receipts tax in relation to interstate and internet transactions differently, and you may find it beneficial to clarify your situation and circumstances with an accounting professional familiar with online businesses and an attorney familiar with online fitness training.
Online training may establish a legally binding relationship that can expose you to lawsuits filed in another state or country. For example, if someone from another state is injured after following the advice on your website site you may be liable, if it is held that you had a “duty of care.” A membership based website that requires a paid membership and signed liability waivers may be one option to be sure that you are not unintentionally entered into a contract with a mere reader of your website, but there are other potential ways to operate your business – this is where the advice of an attorney can be helpful and save you money in the long run.
How do you know if you are establishing a legally binding relationship with clients in another state? An express written agreement is important for fitness professionals working with clients online. So, too, are disclaimers indicating that merely reading a website does not create a contract, nor imply an intent to enter into an agreement on the part of either party. See this post for more information. It is important that your website clearly shows your intended client base by location.
You can use either hard copy contracts mailed to potential clients or electronic contracts that are supported by additional communication records. Read this post about the legal status of web check boxes in electronic contracts for more information.
If you make phone calls or use another form of conference calling (perhaps using video) make sure you keep records of these contacts. A phone call might be appropriate to review the contract with your client and answer any questions they may have.
Periodic reviews (or progress reports) where the client acknowledges and signs (whether delivered in hardcopy or electronically). This may allow for evidence of fulfillment of legal duty as well as assumption of risk and informed consent. These reports should be reviewed by an attorney with experience working with fitness professionals.
Avoiding and Limiting Risks of Liability.
Disclaimers are essential for your website but they do not displace insurance. We have written about the specific disclaimers you should consider for your fitness business. While this is a discussion that you may need to have with an attorney and insurance broker so that your situation and circumstances are addressed, be aware that liability insurance that covers in-person training, may not cover online training. In addition, disclaimers do not obviate the need for a well written contract that addresses, particularly, informed consent and assumption of risk as well as acknowledgement of disclaimers and waivers as appropriate.
Some states—such as Louisiana, Montana, New Mexico and Virginia—hold waivers of all liability to be against public policy in fitness settings. If you work with a client in one of those states, your waivers may be unenforceable. It is important to have your documentation reviewed by an attorney who can advise as to the state based specifics as the requirements vary from state to state.
Working online can give rise to greater liability risks than working in person with a fitness client.
One of the reasons for this increased risk of liability arises because of the lack of in person supervision: this is because assessment, observation, and feedback, three key aspects of the personal training process are complicated by training online rather than in person..
What are the liability issues connected with “lack of supervision” for your business and how can you mitigate these while training in online contexts? Specific questions arise that should be considered as you develop your online training protocols and policies: What is best practice for screening clients for potential risks, is there any way to monitor a client’s form or assess their results without face-to-face contact?
Utilizing questionnaires and seeking to undertake a Functional movement assessment (perhaps through video) may mitigate some of the concerns around initial assessment. You may also gather information regarding an online client’s medical status, fitness history, age, gender, and so – which are subject to HIPAA – but because it may be more difficult to establish if a client is being forthcoming it may be wise to include a statement on the assumption of risk and a waiver based on incorrect or misleading information upon which you may rely to develop a training plan. So too, when seeking to help mitigate injuries or correct a client’s form, including observation of biomechanics, video can be a helpful tool – many in person fitness professionals make use of video in any case. It is true that written instructions can be difficult to understand for some clients, and so an online trainer should be willing to think through protocols to mitigate risk of injury, supported by legally valid waivers of liability, contractual agreements indicating client assumption of risk.
Working online may contravene a non compete agreement
One of the reasons fitness professionals sometimes choose to develop an online training business is to find a way around a non compete agreement signed with a former employer. The validity and extent of non competes varies by state employment law and the terms of the agreement signed by the former employee (or current employee). Whether you can begin an online training business while you are currently employed with a gym (and an active non compete agreement) or while a non compete agreement is in force very much depends on the terms of that agreement and its validity.
Awareness of the complex legal issues and financial consequences of online training is essential for fitness professionals.
The articles below represent further reading about online personal training and the potential legal risks. In addition, consulting with an attorney who has experience in fitness law and understands the industry can be an investment in your business that pays off in the long term.
Ellrod, A. 2000. A web of legalities: Understanding the potential costs of online personal training. Personal Fitness Professional, 2 (7)
Gulick, G. 2002. E-health and the future of medicine: The economic, legal, regulatory, cultural, and organizational obstacles facing telemedicine and cybermedicine programs. Albany Law Journal of Science & Technology, 12, 351–404.