Wavering Waivers

by Beth A. Block

We all use waivers, although I have noticed that the degree of faith we have in them varies from person to person. Some of us see them as unbreakable shields against all lawsuits. Others think they are barely worth the paper they’re written on.

I’ve examined waivers in this column before, including the following points: the fact that our activity is inherently risky; whether we need to have both parents sign a child’s waiver; the value of having a waiver written by a local attorney; and whether a parent can sign away a child’s right to sue.

In this column, I’ll cover the issue of handling waivers when students inform you that they have a medical issue that could affect their ability to fully participate in classes and tests. What would you do in that situation? How would you make accommodations for the student — and would you be willing to?

Side Note No.1: I’m no stranger to dealing with this issue from the student’s perspective. I have epilepsy and cannot take a hit to the head. My husband has asthma and must use an inhaler from time to time. Our studio accommodates these special needs for both of us.

Recently, I was talking to a studio owner about one of his students. The student was preparing for her black-belt test. Over the past six months, she underwent surgery to fuse three discs in her neck. She came through the operations wonderfully, and her surgeon cleared her for everything except sparring and grappling.

The owner had told her that she had to spar to test and that she should just block to make sure she didn’t get hit in the head. I completely understand using objective standards to test students, so I asked him to show me where he’d told students — in writing — that these standards were required to pass the black-belt test. He said he’d never put anything writing or given anyone a specific list of requirements. Strike one.

I asked him if a student would be allowed to keep training at an under-rank level without ever testing again. He said he hadn’t prepared for this scenario and wasn’t sure. Even if he said yes, he told me, he didn’t know if this answer would satisfy the student. Strike two.

My last question to him: Had he made any accommodations for other students, like asthmatics, diabetics, heart patients, etc. He said he wasn’t sure what I meant by “accommodations,” then explained that an asthmatic student could, for example, keep an emergency inhaler in an equipment bag. And just like that, he’d admitted to accommodating other students. Strike three.

Side Note No.1: The Americans With Disabilities Act requires that you make reasonable accommodations for disabled people. Refusing accommodations can land you in trouble. I don’t ever suggest you refuse to accommodate disabled people, but you need to think hard about what a “reasonable accommodation” looks like in your studio.

If you want to teach a completely traditional program with objective testing standards, you need to put that in writing and apply it across the board. That means you don’t let anyone train if that person cannot meet those objective physical, mental and emotional standards. You also need to have that statement in all your online, in-studio and printed materials. Be aware that by doing this, you will narrow your potential customer base.

Coming back to the owner who told his student that she had to spar to test for her black belt, I want to share a couple of thoughts. The fact that she signed a waiver is important — it also became useless as soon as she told her instructor that she couldn’t spar and he told her she had to anyway. Because he had never laid out his objective standards, if she were to spar and become injured, that waiver would not even be worth using as toilet paper.

Although the owner told her she had to be sure to protect her head, we all know that accidents happen. Relying on an accident not happening in the heat of sparring can be called optimistic if you want to be kind. It can be called foolish if you want to be honest.

Think about your studio: Do you want to have objective standards? If so, communicate this to everyone now. Have proof that everyone has received that communication. Include it in your new student paperwork — and have proof you delivered it.

Are you going to exclude all students with special needs/disabilities? If so, be prepared to explain to the Americans With Disabilities compliance board why you’re doing that. If not, where will you draw the line? Be prepared to explain why you drew the line there and nowhere else.

For more information on The Americans With Disabilities Act, contact Beth A. Block at [email protected] or call (800) 225-0863.