Susanne Schmaling, founder and president of the Esthetics Council, offers advice on how to prevent potential legal troubles that can impact your spa's bottom line.
Known for its relaxation, beauty, and wellness services, the spa industry is not immune from the complications of compliance and liability issues. Over my 25 years of experience owning, managing, and consulting with spas, medical spas, and salons, I have found that navigating the legal, safety, and compliance landscape is crucial for success. Let’s look at some of the most common areas of liability, accidents and other liability, compliance with state scope of practice rules, advertising, protecting client data, and tips to stay clear of potential legal troubles that can impact your spa’s bottom line.
Client Consent
Our services have a direct impact on our client’s health. Services performed on someone who has contraindications, such as a health condition without consent in place can open the spa up to liability, as well as the licensed practitioner performing the service. Using proper client consent can help limit liability, and most importantly, inform the practitioner about potential issues so they can use their professional judgment to modify the service or change it altogether. It is crucial to ensure that clients are fully informed about the services they are getting and understand the associated risks. Regular training on how to use your consent and health intake form is important to keep your staff up to date as well.
Make sure your consent forms have the following information:
- Demographic Info: The depth of the data you collect is your choice but at a minimum, you will need to know how to address your clients and contact them after a visit.
- Health Disclosure: This can be limited to conditions and medications that directly impact the outcome of a service. For example, understanding someone has high blood pressure issues can impact how they are assisted on and off the table, the level of erythema that can appear during a facial with temperature fluctuations, and potential dehydration issues from medication use.
- Service Name and Associated Risks: Every service that impacts the body will have some risks. Most of the time, they are low, but it only takes one time for an issue to happen. This is called informed consent and is essential to keeping the client and spa safe. A blanket waiver of liability is not comprehensive enough if something does happen as many spas have experienced in liability cases. I have been a subject matter expert on several liability cases and the most common factor in all of them was inadequate intake forms and no clear informed consent.
- Waiver for Non-Disclosure: Many clients do not feel safe disclosing a lot of information to a third party. This is their choice, but can hamper treatment outcomes or cause potential liability after a service. A waiver that clearly states that the client assumes all liability if they do not disclose information as asked is essential before performing spa services.
Accidents and Other Liability Issues
Various scenarios, such as allergic reactions, accidents, and other contra-actions from a service can create liability. To limit these risks spas must maintain high safety and disinfection standards. As the COVID pandemic reinforced, we are at high risk for transmission of disease due to our close contact with our clients. It is essential to have proper training and written protocols that are followed consistently by all spa staff. Every licensed professional has legal guidelines they must follow to ensure client safety, it is up to spa management to understand these requirements and create an overall safety guideline that takes all of this into consideration.
Be sure to look at the following areas:
- If you are a spa that incorporates medical services as well, your liability is considerably higher, and it is essential to fully understand medical supervision laws as well as the corporate practice of medicine guidelines issued by every state board.
- Liability insurance should not be forgotten here either. It is essential to be insured with the right level of coverage. Make sure all insurance riders are clear about the services the spa is offering and are clear about any training or certification requirements required for your staff. Of course, do not forget your general business liability insurance as well. Be sure to do your due diligence on your insurer, cheap insurance is not always the best coverage.
- Training is another essential factor in reducing a spa’s liability. Having your licensed professional staff fully trained in all spa protocols, products, and safety standards is an important part of reducing liability. Support staff in a spa should not be forgotten either, without this team, your spa will not function at its highest level. They are often the frontline with client issues so additional training in handling these potential liabilities can help diffuse issues that can grow out of control.
Employment Law Compliance
Spa management and owners must be on top of all employment laws. This includes fair hiring practices, wage laws, and harassment-free workplace standards. One of the largest liabilities of a spa is the misclassification of workers. Many states have specifically targeted our profession for the misclassification of independent contractors. Make sure you get up-to-date legal guidance in this area, having an audit and financial penalties due to misclassification can be devastating to a spa.
Protecting Client Data
Everything we do now is digitized. Customer information, notes post services and records of their buying habits are all protected information. It is essential to have a system that secures all client information from unauthorized access and be transparent with your client about how you do it. This also will help your spa build trust with the client to get the information you need to further reduce liability issues.
How to do it:
- Make sure your IT provider has servers set up that are secure and follow HIPPA and GDPR policies with client data.
- Secure your financial transactions with end-to-end encryption.
- Use secure socket layer (SSL) certificates on your website.
- Conduct secure data backups.
- Create protocols for staff to ensure data security best practices which include role-based access control.
Advertising & Marketing
It is vital when advertising spa services that you avoid misleading or unverifiable claims. Every licensing board in the U.S. has a false or misleading claim rule that all licensed professionals must adhere to. With spas, it’s equally important to be truthful with your clients. We are such a wellness-orientated industry and some of the services that we provide can be considered pseudoscientific if the wrong claims are made. The adage “under promise and over deliver” is a good thing to keep in mind. One of the biggest challenges I deal with in the advocacy/compliance world is the overpromising of the effects of protocols and devices. Many manufacturers use claims to sell to the profession without adequate data that proves the claims. The FDA has targeted intended use for classification of devices, which in turn, can make the most common protocols we do out of scope with some boards if the manufacturer is not in compliance. This will impact the spa immediately. An example of this is cosmetology boards’ current focus on cryotherapy devices or services either being out of scope or needing to be performed under supervision. This is due to many devices making claims about lipolysis (fat removal), thinking that cryosurgery is being performed, or claims of healing specific injuries and health conditions. As we know, cryotherapy has been used in spas for decades and there is no safety reason to limit this service. This is a fight that needs to be taken up by all spas offering these services.
Scope of Practice for Spa Technicians
An often overlooked or ignored aspect of legal liability is the scope of practice for licensed professionals. Each service offered in a spa, such as massages, facials, or specialized treatments falls under specific regulatory guidelines. It does not matter the training you give or the devices, and products you purchase if the service cannot be performed by your staff. There is a big movement affecting licensed estheticians’ scope throughout the U.S. This also translates to your massage therapists, nail technicians, and cosmetologists you may have on staff. No one is immune to legislation and rule changes. Our boards have proven that they do not fully understand all of the services we perform or the safety of these services. Most of our services have a decades-long track record of safety. When issues arise it often comes from lack of training, poorly designed devices, or lack of clear client intake.
To ensure that your spa stays up to date here are some tips:
- Identify all professional boundaries by identifying the types of licenses required to perform your services. If additional certifications are required be sure to identify the sources and how your staff can access them.
- Stay updated with regulations by joining industry associations, watching state boards that will impact your spa, or hiring a compliance specialist. Your voice as a spa owner is essential for boards to understand how their interpretation of the law is affecting business. We have a lot of work to do around this issue, the only way to ensure the longevity of our profession is to work together.
- Implement consistent training programs for your staff. This is crucial for skill development, as well as reminding your staff of their legal requirements. Be sure to validate all licenses for your staff that are required. It is important to follow facility licensing guidelines for your various boards, as well. An example of an issue we have in our profession right now is medical facilities performing cosmetology services without a facility license, they are not exempt. It is the same issue for spas.
Navigating all these issues can seem daunting and every business has a certain number of legal guidelines they must follow. With the right knowledge and focusing on preventative measures, such as understanding all the key areas listed in this article, you will be able to stay clear of legal hot water and run your business smoothly for years to come. If you are a spa owner who has a clear exit strategy as well, this type of structure in your business can make a potential buyer feel very secure and add value to your business.
With 29 years of experience, Susanne Schmaling, LME, is a prominent figure in the world of esthetics and skincare. As the CEO and founder of the Esthetics Council, she has set new standards and best practices for the industry, championing professional excellence through advocacy and education. As the co-founder and COO of Skindex Labs, Susanne leads groundbreaking research and development efforts, driving innovation for a new beauty-tech start-up. As a licensed master esthetician and industry advocate, she has nurtured talent and published insights that empower individuals to achieve radiant, healthy skin. Susanne Schmaling LME's career seamlessly blends passion, innovation, and advocacy, consistently challenging the status-quo to innovate and grow.
Schmaling will be speaking at the upcoming IECSC New York, taking place March 3-5, 2024, at the Javits Convention Center in New York City. To learn more about Schmaling's class (and get 20% off education classes using code AMERICANSPA), or to register to attend IECSC New York, click here.