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Are you one of those employers who are always looking for ways of attracting new talent in a field where qualified workers are scarce or building loyalty within your existing workforce? In an era where health and fitness are paramount concerns, some employees may see a gym or fitness centre as an important feature of their employment package.

But what happens when there is an accident? Can an employer be held liable and made to compensate an employee who gets hurt while working out in the company gym? Even though employers offer such benefits with the laudable objective of allowing their employees to improve their quality of life, an employer can still be held liable if an employee has an accident while engaging in a sports or fitness activity at work. Depending on the circumstances, employer liability may flow from the fact that an industrial accident is considered to have occurred, or from the principles of civil fault. So how can such liability be avoided?

LIABILITY UNDER THE RULES RELATING TO INDUSTRIAL ACCIDENTS

The Act respecting industrial accidents and occupational diseases defines an industrial accident as "a sudden and unforeseen event, attributable to any cause, which happens to a person, arising out of or in the course of his work and resulting in an employment injury to him." An accident that occurred at a fitness centre will be deemed to have occurred at work if a connecting link can be established between the event that gave rise to the injury and the employee's work.

The courts have developed various tests for determining whether or not such a connection exists, which are based on such factors as the location and time of the accident, whether or not the employee was being paid for the hours when the accident occurred, whether there was a relationship of subordination between the employer and the employee, whether or not the activity was voluntary, the purpose of the activity in which the employee was engaged and the usefulness of the activity in relation to the performance of the employee's work.

No individual factor is decisive in itself and the courts will assess the circumstances of each case. The following are examples of events that were not considered to be industrial accidents:

• a hotel employee has an accident while swimming in the hotel pool when off duty;
• an employee whose work day is over goes to the company fitness centre to work out and injures himself in the shower; although the employer had encouraged the use of its facilities for physical exercise, the activity in which the employee chose to engage was optional and personal.

On the other hand, events like the following were held to be industrial accidents:

• an employee gets hurt in a company gym in a context where being fit is a condition of employment;
• an employee gets hurt in a company gym in a context where the employee had been on standby and was not allowed to leave the work premises.

Thus, the fact that an employee was required to keep fit in order to perform his or her work, or was using a fitness centre during working hours and being paid at the time an accident occurred, would lead a court to conclude that the accident was an industrial accident.

On the other hand, the lack of a connection between the fitness activity and the work an employee does, or the fact that participation in the activity was voluntary and the employee had to pay to use the fitness centre's equipment, would lead a court to conclude that the activity was personal in nature.

We therefore recommend that employers who provide a fitness centre for their employees to use issue guidelines, stating that employees will have access to the centre outside working hours only, that they will not be paid for the time they spend there, and that participation in fitness activities is completely voluntary. In addition, having an independent business manage the centre, with staff who are not company employees, may also contribute to ensuring that a potential accident would not be considered an industrial accident.

LIABILITY UNDER THE RULES OF CIVIL FAULT

Where an accident is not considered an industrial accident, the employer can still be held responsible because of its obligation to ensure the safety of persons who have access to its fitness centre.

The Civil Code of Québec prevents a person from being able to use a notice or disclaimer to exclude or limit his liability for bodily or moral injury caused to others. The employer will thus be considered liable for any bodily or moral injury caused through its fault or the fault of one of its employees.

In order to avoid liability, an employer must exercise the care expected of a reasonable and diligent person in managing its fitness centre. To this end, we suggest that the following recommendations be followed:

• ensure proper maintenance of the premises and equipment, in particular the showers, floors and changing rooms (for example, a company was found liable because a hole in a carpet caused a user of its fitness centre to dislocate a toe);
• ensure that precise instructions and warnings concerning the use of the equipment made available to employees are accessible and visible; such instructions may be given on site by qualified personnel or may be posted near the equipment in question;
• ensure that employees who use the fitness centre are physically able to engage in such activities; when they register, you can ask them to fill out a medical questionnaire or require them to provide a medical certificate confirming that they have the necessary physical ability, which certificate they would have to have renewed every time their membership is renewed or when there is a change in their health;
• ensure proper supervision in keeping with the risks associated with the equipment provided, such as by having a qualified instructor on the premises.

Despite the foregoing, the employer's obligation to ensure the safety of employees who use its fitness facilities is not absolute. Employers should take the necessary steps to prevent foreseeable accidents, bearing in mind that not all accidents are preventable.

In addition to its obligation to ensure user safety, the employer may be held responsible for the acts of fitness centre attendants or instructors if they are its employees. So, for example, an employer could be held liable because an attendant failed to provide adequate instructions or issue appropriate warnings regarding the use of equipment. One way of avoiding this type of situation is to entrust the administration of the fitness centre to an independent company employing its own expert personnel.

Insofar as property damage is concerned, liability may be limited by posting a notice to the effect that the employer is not responsible for theft, loss or damage to property resulting from use of the fitness centre. This information should also be included on the centre's registration form.

WHAT ABOUT THE EMPLOYEE'S RESPONSIBILITY?

Any physical activity carries an inherent risk of injury and the employee also bears part of that risk by agreeing to participate in the activity. To minimize its liability exposure and make employees aware of the risks, the employer can insert a clause in the registration form stating that the employee assumes the risk of participating in the activities offered at the centre. As stated earlier, such a clause will not allow the employer to escape liability for bodily or moral injury but could help to minimize the amount of compensation it might be ordered to pay in the event of an accident by allowing responsibility for the accident to be apportioned between the employer and the employee.

In conclusion, we recommend that you notify your insurance company if you intend to make a fitness centre or gym available to your employees and, above all, that you make sure to take the necessary measures to prevent all foreseeable accidents.

Geneviève de la Durantaye 

The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.

© Ogilvy Renault LLP 2007 - All Rights Reserved

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Christian J. Beaudry
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Geneviève de la Durantaye
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Diane Lajeunesse
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