Using client waivers for your float business – DSP 96

Lots of float centers have waivers. Protecting from liability in case of accidents is a straight forward and sensible thing, especially with a lesser known alternative wellness treatment. Float On doesn’t currently have waivers, and Graham and Ashkahn go into explaining their reasoning behind making that decision. They also explain the common sense justifications for deciding to have waivers as well.

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Transcription of this episode… (in case you prefer reading)

Ashkahn: I’m Ashkahn, and today’s question –

Graham: Is “should float centers require new customers to fill out waivers?”

Ashkahn: Should the … Yeah. Okay. Waivers.

Graham: Did you almost start singing then?

Ashkahn: This is an interesting question for us to answer, and –

Graham: It’s interesting because –

Ashkahn: So we don’t have waivers.

Graham: And we’re freaks in the float industry.

Ashkahn: I think we might actually be the only float center I know of that doesn’t use a waiver, personally.

Graham: So how much you should actually listen to us is –

Ashkahn: You probably should use a waiver.

Graham: We should probably be using waivers.

Ashkahn: We should probably be using a waiver.

Well, so we don’t use a waiver because when we first got up and running –

Graham: Yeah.

Ashkahn: Floating was … It was very unknown, right.

Graham: This was like 90 years ago.

Ashkahn: Yeah. They hadn’t even been invented yet. We were really trying to get people to understand that this was a thing, and that it wasn’t weird and scary, and all this sort of stuff, right. So, when we were opening our business, we were looking for any friction that we could reduce off the process of someone coming in and floating, and anything that could make it seem like a much more normal, approachable thing to do.

Graham: And in doing that, the idea of having someone sign a waiver, saying they understand all the risks associated with floating was … It felt a little intimidating for people just getting into it. So we kind of consciously went into things knowing that we were putting ourselves a little bit more legally on the line through not having a waiver, and we just wanted to make sure we were getting people in the tanks, and not scaring them off. And to us, that was a risk that was at the time worth it, and I guess it’s still worth it right now, cause we still don’t –

Ashkahn: Clearly. Cause we’re still not doing it.

Graham: -Have waivers yet.

Ashkahn: Maybe we should reconsider though … So why do people have waivers? It’s an important thing to figure out, and I think there’s a few different things people put in waivers to try and protect themselves.

Graham: Yeah, and the first part, the biggest protection that a waiver gives is just discouraging people who have read it from trying to follow up and do something strange, or just informing the customers that you have and making sure they know they signed something that said they wouldn’t engage in certain behavior, or they aren’t bleeding massively from a cut, or have uncontrolled epilepsy. We’ll get into the specifics, but –

Ashkahn: Yeah, so you’re trying to deter people, and in the case that something does come up, you’re trying to have some legal protection.

Graham: Yeah, and so that’s the other half. Not just the personal customer side, but if something does come up in court, you have something to be able to show to the judge and say “Hey, we do have a thing this person signed off on, specifically saying they understood this policy. Maybe they shouldn’t be suing us, right?”

Ashkahn: And maybe this is a good moment to remind you, our dear listeners, that we are not lawyers, have no law degrees, don’t really know that much about the legal system, and you shouldn’t really take this as legal advice, or think that anything we’re saying is true, ever, or accurate, in any sense of the word.

Graham: I’ve never even been portraying an actor.  Wait, an actor? What’d I just say? I’ve never been acting like a lawyer, is what I meant to say.

Ashkahn: Yeah.

Graham: I’ve been an actor.  And I’ve portrayed actors.

Ashkahn: So, yeah, you’re getting kind of raw opinion here. With that little preface, one of the things that people typically put into their waivers, and I personally see three main things that people are trying to protect themselves against.

One of them is slip and fall. Or liability in general. For someone coming in and something happening to them, injury, illness, something like that, that you want to have some sort of liability protection for. That one’s interesting. This is the part where we’re the most not-lawyers. And you should probably ask your lawyer.

Graham: I don’t know. I think we’re pretty solidly not lawyers throughout all of this.

Ashkahn: I think there’s other sections where we’re a little bit more lawyers, but in this section, like how much a waiver actually protects you, liability-wise, is an interesting thing to look up. And I think this can actually differ even from state to state, in terms of how strong of a protection a waiver is, but in general, I feel like it’s not the only variable that if you were to be in court, or some sort of process including this, that they would be actually using to determine something.

Specifically with slip and fall, because I do think that’s probably one of the actual biggest concerns of someone injuring themselves in a float center, with slip and fall, if you had someone sign a waiver and they slipped –

Graham: And fell.

Ashkahn: And fell. And you just did a horrible job not doing any anti-slip stuff anywhere in your slip center, you probably are still to blame a little bit. And the waiver might not end up actually protecting you in that scenario. If they come in and your floors are super slick and you’re not doing a good job cleaning up to make sure they’re not wet, and there’s just like a slide going into the room or something that people have to walk over … There’s all sorts of ways that people could be like “Okay, they signed this waiver, but clearly your place was a danger to the public, and I don’t care that they signed a waiver. You’re still going to be liable for this.”

Graham: Yeah. I guess going into this knowing that the waiver doesn’t just grant you immunity from –

Ashkahn: Uh-huh.

Graham: People aren’t even allowed to sign away their rights, right? Someone can’t come into a room when I’m teaching them how to juggle swords and I have them sign a waiver saying if they cut off their hand when they’re juggling swords, they’re not going to sue me, and they cut off their hand, they’re still very much allowed to sue me. The fact that they signed that document does not mean that I’m protected now.

So it still very much depends on you following your own set of laws, everything that’s on the backend for your business. And being set up responsibly, like Ashkahn said, you know? You can have people sign things all day long saying that they won’t hold you accountable if you slip and fall on slippery surfaces, and then if the court just decides that your floors are slippery enough that they don’t want to honor that waiver, they can decide that and just toss it out.

Ashkahn: And the other side is true, too.

Graham: I think.

Ashkahn: Yeah. We think. We’ve never been in court.

The other side, like if you do a good job making your place slip resistant, if you have really anti-slip flooring, if you have grab bars everywhere, you know, if you add in protections like that, I think that can also go towards building a good defense for yourself. We specifically went out and bought this type of flooring, and we have a grab bar in front of the float tank, and in the shower, and here, and so stuff like that is also going to be in your favor. Showing kind of general competence.

Graham: Yeah.

Ashkahn: And attention to those things you’re worried about.

Graham: So thing number two? Is that medical concerns.

Ashkahn: Yeah, so basically why would you not want someone getting into your float tank for some sort of reason, for their own health and safety.

Graham: And the really big one here that I see no argument with is uncontrolled epilepsy.

Ashkahn: Yeah, and I don’t know if it’s actually something in the float tank that would trigger epilepsy –

Graham: No.

Ashkahn: But it’s just that’s not an environment you want someone who might have an epileptic seizure to have a seizure in.

Graham: Yeah. And that’s the uncontrolled part, too, right. It’s at the point where they could have a seizure anywhere the doctors haven’t felt comfortable enough to say that it’s controlled epilepsy. At that point, it’s one of the only things someone could have a fit of their … Disease, I guess is what you call epilepsy, anyways, what they’re suffering from, in this case, an epileptic fit, and actually die as a result of it. There’s no one in the room with them, hypothetically. Their head could go under water. They could just inhale a bunch and drown as a result of having a seizure. So that’s why you see that on there. It turns out that there aren’t too many other things where you have the same level of concern, but there are things that will make the float impossible or difficult.

Ashkahn: Right, like large, open skin wounds are going to hurt really bad, and their not going to be good for disease control. That’s an easy way to get something infected or something like that.

Graham: Yeah.

Ashkahn: And there’s other things like a tattoo. If they’ve gotten a tattoo recently and they get in the float tank. It’s going to hurt, first of all, but it’s also going to mess up the healing process of their tattoo.

Graham: And possibly just ruin the entire thing.

Ashkahn: Right. So you don’t want that to happen to somebody. So there’s a few things like that, and those are good things to put on a waiver. What we do is we send those out in our email, reminder emails, so when you book a float you get an email reminding you of your appointment, and in there it lists things like don’t come float if you’ve gotten a tattoo at this point and this kind of stuff we’re talking about.

Graham: Yeah, and we do in-person walkthroughs, as well, so not pre-recorded walkthroughs. And we’ll also cover some of these things during the walkthrough speech as well, if it seems like there’s a reason to.

Ashkahn: The third category that I see, not on everybody’s waiver, but on some people’s waiver, is protecting them if someone does something to their float tank that requires them to completely have to drain it.

Graham: Bodily fluid related.

Ashkahn: Yeah. Some sort of bodily fluid situation that means you gotta dump your tank and refill it. They usually have something written in there that says “If you do this, I’m going to charge you $500, $1000” I’ve heard $2000 that someone has had in their waiver for having to replace the float tank.

Graham: The float tank water.

Ashkahn: The float tank water, yeah. So that one is interesting. This one is the most, I guess, opinionated. You’re just getting our opinion versus someone else’s opinion here, but I don’t know, it’s not something I really think is important to have in there. I think I would rather not have to have every one of my customers stop for a moment before they float and consider strange bodily fluids getting into the float tank.

I think also what you’re protecting yourself from is so rare. We’ve been open over seven years. We’ve done somewhere around 80,000 floats at this point and it has happened to us, but it’s happened to us one time. So one out of 80,000 floats that we’ve actually had something happen to our tank water to the point we’ve needed to drain it. Even when it did happen, it was this kindly old lady and I can’t even imagine going after her afterwards and being like “You owe us $1000 lady!” I probably wouldn’t have done it. Honestly, if I’d had every one of our customers for all those years sign that thing and this situation happened, I probably still would have been like “Okay, I’m not going to charge this person $1000.”

Graham: I should say what we’re talking about in this case is AFRs. Look it up. Do a Google search to know what it is. And there are other bodily fluids, though, that we can be talking about here. It’s not all just poop in the float tank. There can be blood, there can be semen.

Ashkahn: Vomit.

Graham: Vomit. I feel like a lot of these waivers are actually trying to protect against jacking off in the float tank and finding semen in there, to be honest. That’s one big part of the bodily fluids they really don’t want people doing in the float tank. It’s interesting because I think to take the devil’s advocate side of people who do want that on the waiver, right.

Ashkahn: Okay.

Graham: They want it almost so that their customers know that this isn’t going to happen. Because by signing that same waiver, they realize that the person before them also had to sign a thing saying they’d be dinged $1000 if they jerk off in the float tank or something like that. I’ve heard that there’s actually this piece of mind that comes with knowing that there’s such a big penalty and thinking that will provide a little more sanitary safety.

Ashkahn: Interesting.

Graham: I’ll say.

Ashkahn: Okay. I can see that argument. I mean … Yeah. There’s that, but you are still reminding person of it as they enter into float tank.

Graham: And we don’t even have a waiver, right!  Just to back up a little bit. Arguing about the nuances of what we would put on our waiver is an interesting exercise in hypotheticals for us.

Ashkahn: Yeah.

Graham: So we don’t know but that is what I’ve heard from people who do have that specifically on their waiver and the justification for it.

Ashkahn: Sure. Yeah. But again, in reality this is not an ongoing problem that we’re trying to deal with or anything like that.

Graham: Right, and the reason I brought it up, too, is because that’s also not health and safety-wise a reason to drain your float tank.

Ashkahn: Right. The chances that someone would actually get a disease from something like that is not very high.

Graham: Yeah. Close to zero. If you look on the CDC website for things that they’re concerned about, it’s not ejaculate and blood.

Ashkahn: Blood. It’s kind of in that gross but not unsanitary sort of world.

Graham: It’s poop and some kinds of vomit are what they’re worried about.

Ashkahn: So should you have a waiver? I guess you probably should, considering that everybody else does.

Graham: Yeah do as we say, not as we do. Though one other nice thing about waivers, as well, is you can actually put some interesting demographic gathering information in there.

Ashkahn: That’s true.

Graham: You know, finding out the reasons why people are coming into float can be interesting to grab from them. You can also even do pitches for your memberships on there. I know a lot of waivers that end with mentioning if they enjoyed their float that there are these ways they can save money coming back regularly. That’s kind of a cool thing to be able to have someone go through and sign next to is “Yes, I understand you have memberships”, you know?

Ashkahn: “Yes, I understand that by default I am signing up for your membership.” I guess ask a lawyer about the real lawyerly parts of this.

Graham: Find out what’s actually going on.

Ashkahn: So that’s probably … Yeah. You shouldn’t have asked us this question. You should ask a lawyer.

Graham: And if you’ve listened to this episode, you probably shouldn’t have done this either. Just skip to the next one.

Ashkahn: You made a big mistake.

Graham: Yeah. We’ll have much more to say about the next question. I promise!

Ashkahn: Alright, well, to ask us other questions that we shouldn’t be answering, you can go to floattanksolutions.com/podcast and we will talk to you tomorrow.

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