One of the more complex aspects of organizing a retreat is the legal considerations that go with it. As the organizer, you need waivers, forms, and insurance that is clear, concise, and specific to your offering to protect you and your clients.
While it’s not something that anyone likes to think about, accidents and unforeseen circumstances do happen. Most recently, with the COVID-19 pandemic, we have seen the force majeure in action.
Without the proper protection for your business, your contractors, and your retreat goers, these types of events can land you in a sticky situation with the law.
The good news is that clear documentation can help clear up what might otherwise result in a lawsuit. Coming in with some very valuable advice for WeTravel’s community is Jeff Ment of Ment Law Group.
In a conversation with Keri, he talks about waivers and forms needed for your retreat goers, common questions on retreat insurance, how to handle independent contractors, and legal COVID implications for your next retreat.
Jeff has spent most of his adult life in travel, either on the selling, supplier, or law side of things.
Ment Law Group provides legal counsel to companies in the travel industry. For more than 28 years, Jeff has represented all types of travel organizers, including travel agencies, advisors, OTAs, operators, retreat leaders, suppliers, vendors, cruise lines, hotels, and corporate executives.
Before law school and becoming an attorney, Jeff worked as a travel advisor, tour guide, and sales manager for two airlines. This industry experience allows Jeff and his team to better understand the legal needs for our industry or anyone who organizes travel.
Keri: So, what kind of waivers or forms do retreat-goers need to sign or agree to before signing up or going on their retreat? Is there more than one that might be necessary?
Jeff: I think that everybody should have some kind of waiver or disclaimer.
And it doesn't really matter how risky you think the activity is. It still could be risky to somebody because you may not know their background or know enough about their medical history.
So, a waiver is important.
When a judge or a jury interprets these kinds of things, one item that's always considered is how far in advance the person knew about the waiver.
It should be on your website and it should be in the material when they book. It should not be a surprise when they show up at the registration table and are asked to sign something.
A document in advance would be the best way.
Keri: And this is specifically a health waiver?
Jeff: It’s a health and liability waiver. It’s a waiver to protect you from a lawsuit that can happen in our country.
Keri: Do you think it happens more often here for us in the U.S. with U.S.-based clients than it does internationally?
Jeff: Well, we have a different legal system than most places. The person who loses the lawsuit here doesn't pay for the winner’s legal fees. In other countries, they do.
Say someone's coming to a retreat, and they fall on their way in. Imagine they try to blame you for picking a bad venue where there was an uneven step or water on the bathroom floor.
The idea is that you're going to be blamed even if it wasn't your problem because you're the one who brought them there. It was your activity that brought them to the hotel. So why not include you in the legal mix?
It’s the waiver that protects you in circumstances like that.
Keri: So, does your team help companies, retreat leaders, or yoga teachers create these waivers? Do you have specific advice for them?
Jeff: We do draft a lot of them. They need to be geared to what you're doing. Because when judges interpret these, if it's just some long, never-ending Legal Ease that's not really tailored for what you're doing, it’s less likely to be found to be valid.
They want it to be clear, concise, and conspicuous; the three C's.
Keri: Do you think a retreat leader should have a different waiver for each retreat? Or can they use the same one across different retreats?
Jeff: I think that if it's made for what you do, it should be okay from one event to the next. You should be able to use it more than one time.
Keri: So, how do retreat leaders handle independent contractors that they hire? For example, other teachers who might be teaching alongside them, nutritionists, or anyone joining their trade?
Jeff: Independent contractor law is a little bit sticky and tricky because it varies from state to state.
The general idea is if you're hiring someone and you're controlling them, they're more of an employee than an independent contractor.
If they have some flexibility, if they have their own company, if they work for other people, if they get to pick and choose whether they come or don't come, if they get to participate in setting their own fee--that looks and smells more like an independent contractor.
And that's probably what you want to establish.
Honestly, the best thing is to set up an independent contractor agreement. Call it right out at the beginning that this is what they are, and this is what they get. And more importantly, this is what they don’t get.
That's changed over the years. Independent contractor misclassification issues are getting tougher. So, you do need to talk to somebody who knows something about this on your classification issues.
Keri: And what kind of insurance does everyone need for their retreats?
Jeff: There are really three kinds of insurance to at least consider. You don't need all three, but there are three to think about.
The first is general liability insurance. That's important if the event happens at your studio or facility and you own the place that the people are coming to.
You need to protect yourself as if it were your home. If it's a business and they're coming to your studio, you need business insurance in case they slip and fall on the ice outside.
If you’re a retreat organizer, you're more of a professional planner. Professional planning people should have errors and omissions insurance. This protects professional planners if there's a mistake in the plan or if something doesn't go well.
And the last kind is called event insurance. This is if you're having a large gathering, more than 100 people, off-site, at a venue, where you might want to purchase a single event-related policy.
Keri: Does the retreat leader have to have their own insurance? Or does the venue insurance cover anything that may go wrong? I'm curious about it.
Jeff: So, I think if you're an independent contractor, you should be covered under the insurance of the company planning the event.
If you're a yoga instructor hired to come to somebody else's event, theoretically, you're going to be covered under the person's event or the errors of omission insurance.
If you're in the business of regularly going around doing different events for different people, it's a great idea to have your own cover. At that point, you're probably big enough that you can afford to do it just to know how you're best protected.
Keri: My last question is around the inevitable COVID. How has it impacted travel contracts? What might a retreat organizer need to do differently or do now in this post COVID world?
Jeff: I think it is smart, and it makes sense to have some kind of COVID description or COVID waiver, at least for the foreseeable future.
Hopefully, in a year, we’ll think, okay, we get rid of it.
But right now, if you're gearing up for traveling in 2021 or 2022, I think you need a description. You can take all the best practices in the world to protect people, and it may not matter. Anyone can catch the virus.
Jeff: Another kind of a segue from that question is, can you require that your participants be vaccinated?
The answer is yes. You can say you're not coming unless you're vaccinated.
The same holds true for your retreat leaders or your independent contractors. You can say you can't work with me if you're not vaccinated.
The one footnote to that is, if somebody fits into an Americans with Disabilities Act definition for why they cannot be vaccinated, you may have to work around that. But that is really the only reason.
And I mean, look at the cruise lines. Some say all vaccinated. Some say proof of test. Some say proof of antibody. You can make the rules. You are the boss of your event. These are not public events that anyone is legally entitled to come to.
Keri: That makes sense. So, basically, you need to have some type of guidelines written now. At the end of the day, you need to have your clients agree to that before they sign up.
Jeff: You should tell them before that if something terrible happens and the event has to be canceled that you have the right to do that--force majeure.
Your retreat can be canceled because of events outside of your control. If the event has to be canceled, and you don't have the people's money because you paid the teachers and you paid for the food, you should not have to refund the money you don't have control over.
Force majeure should say something like refunds only come after you get the money back IF you get the money back from your suppliers and vendors.
A big thanks to Jeff for his advice on legal considerations for retreat organizers. If you need a specialist attorney to help with documents for your next retreat, do get in touch.
Berkshire Hathaway Specialty Insurance: https://bhspecialty.com/
AON: https://www.aon.com/
Jeff Ment
jment@mentlaw.com
https://www.mentlaw.com/