Wellness Resource Guide
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Table of Contents

Regulatory Authority

Liability Issues

LIABILITY ISSUES

Some concerns have been raised to the Committee and to DPA regarding the potential liability incurred by departments that undertake development of weight management and exercise programs. Based on research and discussions with other employers, these concerns appear to be over-emphasized. Very few problems have occurred when employers have allowed employees to voluntarily use on-site exercise facilities during the work day. Most work-related injuries that come from exercise programs are due to mandatory fitness programs that are required for peace officers and fire fighters. Voluntary fitness programs that are well designed and conform to reasonable safety precautions are generally far less vulnerable to workers' compensation claims or tort liability than other work areas. Whatever short-term risk they impose to the employer is outweighed by the potential long-term savings that can be achieved in health care and workers' compensation costs. However, the following guidance is provided in an effort to give departments information on legal issues and areas in need of some consideration.

State Liability During Wellness Program Activities

State agencies that have, or anticipate providing for their employees on-site State owned gyms or athletic facilities, are granted exemptions from taxability under IRS Section 76036. However, there may be potential liability and workers' compensation ramifications if an employee is injured while participating in physical fitness activities or using exercise equipment at the work site. The liability for the State in having exercise/recreational and other wellness program activities for employees on its premises generally falls under the rules of tort and negligence. However, it appears that in the absence of negligence or willful, intentional acts on the part of the employer, the remedy for an injured employee could be a workers' compensation claim.

The general rule applied to most sporting events is that voluntary participants in lawful sporting activities assume (as a matter of law) all the ordinary and inherent risks in the sport, so long as the activity is played in good faith and the injury is not the result of an intentional or willful act. (Richmond v. Employers' Fire Ins. Co. (1974) 298 So.2d 118; Nunez v. Isadore High School (1975) 306 So.2d 457.)

According to an article written by Diana Rouseau Belbruno, for the Practicing Law Institute, Litigation and Administrative Practice Course Handbook Series, PLI Ord. No. H4-5l06, (c) 1191, workers' compensation may provide coverage in limited circumstances if the employee is injured while participating in employer-sponsored sports at on-site fitness centers or company provided health clubs. The following conditions would have to be met:

  1. The injury occurs on employer's premises during a regular period of employment;
  2. Employer brings activity within course of employment by expressly or impliedly requiring participation; and,
  3. Employer derives substantial direct benefit from the activity beyond the intangible benefits derived from the improvement of employees' health and morale.
One of the ways that departments may be able to minimize the potential for negligence is by properly designing and executing a waiver form which the employee signs prior to participation in an employer-sponsored fitness program or on-site exercise facility, etc.

The suggested elements of a good waiver are:

  1. Waiving party must have an opportunity to know, understand and appreciate the terms of the release;
  2. Signing of the release must result from free and open bargaining and not through fraud, duress or misrepresentation.
  3. Express terms of the release must be applicable to the particular misconduct of the party whose potential liability is waived.
  4. Clauses which exonerate or absolve the employer from blame will not insulate a party from liability for wanton, intentional or reckless misconduct.
  5. The terms of the release should succinctly state which parties, agent or employees are covered by the release since, under general contract law, the terms of a contract may only extend in some instances to the actual parties involved.
  6. Since these agreements are subject to contract principles, they may be disaffirmed in instances where the individual is a minor.
  7. The release should state that the department relies on the individual's representation of being in good health.
(Hewitt v. Miller (1974) 1 P.2d 244; Wintersstein v. Wilcom (1972) 293 A.2d 1; Kaiser v State (1967) 285 N.Y.S. 2d 874; McCarthy v. National Association for Stock Car Auto Racing (1973) 226 A.2d 1); El Santo v. Bristol County Stadium (1960) 273 F.2d 605).


Sample waiver forms are included (Appendix G).

Other recommended steps that a department can take to minimize negligence include:

  1. Requiring approval of the employee's doctor to participate in exercise programs.
  2. Making sure qualified people do routine safety checks of any exercise equipment.
  3. Having qualified staff on duty with appropriate emergency training and equipment. This would generally apply to an on-site fitness center.
  4. Obtain a release from participants.
  5. Avoid activities that might be interpreted as medical treatment (i.e., stress testing, unless supervised by a doctor or appropriately licensed personnel).
There are several components in the work site health promotion program that need to be taken into consideration when developing the program. Management support, committees, interest surveys, program planning and events, and evaluation methods are some of the major components that are necessary to the success of the program. Each of these components needs to be incorporated into the development and implementation of the health promotion program.
ball graphicBackground ball graphicPlanning the Program
ball graphicProgram Design and Implementation ball graphicProgram Evaluation