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Can (and should) producers use COVID-19 waivers from cast and crew to limit their liability?

Can (and should) producers use COVID-19 waivers from cast and crew to limit their liability?

The scenario

An actor client today told me that she’s been asked to sign a document before coming to work on a new project. The waiver expresses all kinds of new protocols for minimizing disease transmission on and around the set, but then it goes on to include a waiver, stating that she understands that there’s still a risk, and is assuming that risk by taking the job, so she promises not to sue or make claims if she gets the disease.

she checked in with SAG/AFTRA. They told her that they’re directing members NOT to sign these waivers.

But what about non-union personnel and projects? Is this a legitimate kind of thing?

General Rule: workplace safety required.

Employers have a duty to maintain a safe workplace. That means complying with local orders, state regulations, and guidance from government agencies like CDC, OSHA, and local authorities

What is a waiver?

The term waiver is pretty loosely defined. In this context, it essentially refers to a release agreement… A contract that includes a series of provisions designed to reduce the employer’s liability. These include not just a clause waiving the claims, but the aforementioned assumption of the risk, and covenant not to sue.

If these waivers are enforceable, they would eliminate most, if not all, liability for the risks they articulate.

Can a worker even waive his or her claims?

Generally, because of the disproportionate bargaining power between employers and employees, waiver agreements have been viewed with skepticism and disfavor. But the current situation is unlike any that business has faced in over a century. So there's no telling how courts will react.

States, however, through their worker compensation laws, require medical expenses, lost wages, and rehabilitation costs be provided to employees injured in the course and scope of their employment. Employees generally cannot waive their worker’s compensation claims for work-related injuries.

Sometimes, it may be hard for employees to prove they caught COVID-19 at work, some states, including California, have created a rebuttable presumption that when workers contract COVID-19 it's a workplace injury covered by the workers’ compensation system.

Waivers can’t protect employers from OSHA complaints or enforcement actions for dangerous work environments, either.

AB5 makes nearly all entertainment workers employees.

California's Assembly Bill 5, which took effect January 1, 2020 changed the rules of how and when workers can be classified as independent contractors. As a result, nearly all entertainment industry workers must now be treated as employees.

So, any workplace-contracted cases of Covid-19 would likely be covered under Worker Compensation.

But what about the few non-employees, independent contractors remaining?

Yes, a waiver COULD protect the employer.

IF the worker signs

So, should employers request such a waiver?

The practical effect of such waivers may be to discourage workers from returning… OR, may discourage those who do become ill from pursuing claims. And, while that's beneficial for employers, legally speaking, jsuch waivers may not be enforceable.

In the face of SAG-AFTRA’s directive to members and the limits placed on such waivers by Worker Compensation law, insisting on such waivers seems a wasted effort, with considerable downsides. For example:

  • Bad Publicity for your production if word gets out that you're one of “those” employers. Especially if a high-profile worker contracts the disease;
  • Lowered worker morale. Unhappy employees aren't as productive, and worries about safety may interfere with operations;
  • Some valued workers may refuse to sign waivers and thus need to be replaced. (unless you're willing to eliminate the waiver requirement for some, risking outcry from others when they learn of the disparate treatment).

But some productions may find themselves between a rock and a hard place. It's conceivable that insurance will be difficult or excessively costly to obtain if waivers aren't included in workers' start paperwork. Without insurance, there are greater risks than those listed above. But without the workers, there's no production to insure.

Reasonable Protocols that don't include waivers and assumptions of risk

Now, this article is NOT intended to suggest that employers shouldn’t take steps to limit access to workplaces if they’re infected or at higher-than-usual risk. These might include things like:

  • Entry Questionnaires
  • Temperature checks
  • Visual observation/evaluation
  • Insistence on workers' compliance with mask protocols, hand washing, distancing, etc.

Should workers consider signing waivers?

If you’re a worker, check with your union to determine whether they’ve issued any guidance on this. If so, follow it. (here's a link to SAG-AFTRA's notice)

If you’re non-union, or your union hasn’t offered any guidance, consider the risks very carefully. While very broad waivers are usually disfavored, we can’t yet predict how courts will enforce them given the scope of the Covid-19 crisis and its effect on business. Obviously the decision is yours to make.

Personally, I’d decide not to sign a waiver.

Beware of waivers in sheep's clothing

One last word of caution for workers: Be careful about tricky “questionnaires” that include a waiver or assumption of the risk. Always make sure you read and understand any document you’re asked to sign.

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