Gov. Cooper vetoed a bill that would open gyms. So why are some N.C. gyms open?

Jul. 9--Gov. Roy Cooper's reopening plan generally bars gyms and fitness centers from opening yet, but some gyms in Charlotte and around the state are back in business anyway, citing a loophole.

A revised version of phase two in the state's reopening plan allows indoor fitness facilities to open only for individuals prescribed to exercise from a doctor or medical professional.

But gyms are citing the Americans with Disabilities Act, saying no one is required to disclose medical conditions or disabilities.

The ADA protects the medical privacy of individuals and prohibits forced disclosure of medical conditions or disabilities, according to Chuck Kitchen, an attorney representing a group of N.C. gym owners in a pending suit against Gov. Roy Cooper.

"The person using the facility is not required to disclose any medical information or disabilities to the owners of the gym," Kitchen said.

But the state Department of Health and Human Services disagrees. A department spokeswoman told the Observer Thursday the medical exception is supposed to be "very limited," for those with a doctor's note, and that gyms cannot resume normal business.

"Our office is not aware of any law, rule or regulation, including the Americans with Disabilities Act ("ADA"), which would prevent" gyms from requiring a doctor's note from customers, she said.

The governor's executive order closing gyms and other exercise facilities due to the coronavirus includes an exception for health care services and activities, according to a letter to Kitchen from Phillip A. Rubin, special deputy attorney general.

In a statement following Rubin's letter, the state Department of Health and Human Services clarified that gyms can reopen indoor locations to accommodate individuals who are prescribed to use them from a medical professional.

DHHS stated that those who use the indoor facilities "must present a note or other written communication from the medical professional or health care professional to the facility operators to confirm that each individual's use of the facilities is indeed 'prescribed or directed.'"

Josiah Boling, co-owner of Hive Fitness in Charlotte, said his facility told members it is open because of the exception for medical use, but he won't ask patrons to show their medical documentation.

"It is our understanding and belief that it is a clear violation of the ADA for us to ask about those medical conditions," Boling said.

Because of the conflict between the state's guidance and the ADA, Boling said his gym is "caught in between" and in an "odd position."

"I don't know anybody personally that doesn't work out for some medical condition," Boling said. "Whether it's weight loss, muscle gain... Whatever their condition is, that's generally why people work out, is health-related conditions."

Rubin's June 5 letter states that the medical exception doesn't undermine the public health rationale of keeping gyms closed to the general public in phase two of reopening.

"Because the number of individuals taking advantage of this exception will be low, the risk (to) the public is reduced versus opening the facilities to the general public at this time," Rubin wrote.

Steve Halloran, owner of RockBox gym in Charlotte, has reopened his gym. He said he isn't asking anyone for proof of medical referral because of the ADA.

"I don't do illegal stuff," Halloran said.

Halloran said there's a safe way to open gyms, and he said he believes opening them would help more people during the pandemic, including with their depression and to boost their immune system.

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