{"id":8806,"date":"2020-06-23T11:50:00","date_gmt":"2020-06-23T18:50:00","guid":{"rendered":"https:\/\/firemark.com\/?p=8806"},"modified":"2020-06-23T11:52:21","modified_gmt":"2020-06-23T18:52:21","slug":"can-and-should-producers-use-covid-19-waivers-from-cast-and-crew-to-limit-their-liability","status":"publish","type":"post","link":"https:\/\/firemark.com\/2020\/06\/23\/can-and-should-producers-use-covid-19-waivers-from-cast-and-crew-to-limit-their-liability\/","title":{"rendered":"Can (and should) producers use COVID-19 waivers from cast and crew to limit their liability?"},"content":{"rendered":"\n
\nhttps:\/\/youtu.be\/I2bOFZbrWSY\n<\/div><\/figure>\n\n\n\n

The scenario<\/h2>\n\n\n\n

An actor client today told me that she\u2019s 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\u2019s 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.<\/p>\n\n\n\n

she checked in with SAG\/AFTRA. They told her that they\u2019re directing members NOT to sign these waivers.<\/p>\n\n\n\n

But what about non-union personnel and projects? Is this a legitimate kind of thing?<\/p>\n\n\n\n

General Rule: workplace safety required.<\/h2>\n\n\n\n

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<\/p>\n\n\n\n

What is a waiver?<\/h2>\n\n\n\n

The term waiver is pretty loosely defined. In this context, it essentially refers to a release agreement\u2026 A contract that includes a series of provisions designed to reduce the employer\u2019s liability. These include not just a clause waiving the claims, but the aforementioned assumption of the risk, and covenant not to sue.<\/p>\n\n\n\n

If these waivers are enforceable, they would eliminate most, if not all, liability for the risks they articulate.<\/p>\n\n\n\n

Can a worker even waive his or her claims?<\/h2>\n\n\n\n

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.<\/p>\n\n\n\n

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\u2019s compensation claims for work-related injuries.<\/p>\n\n\n\n

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\u2019 compensation system.<\/p>\n\n\n\n

Waivers can\u2019t protect employers from OSHA complaints or enforcement actions for dangerous work environments, either.<\/p>\n\n\n\n

AB5 makes nearly all entertainment workers employees.<\/h3>\n\n\n\n

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. <\/p>\n\n\n\n

So, any workplace-contracted cases of Covid-19 would likely be covered under Worker Compensation.<\/p>\n\n\n\n

But what about the few non-employees, independent contractors remaining?<\/h3>\n\n\n\n

Yes, a waiver COULD protect the employer. <\/p>\n\n\n\n

IF the worker signs<\/strong><\/p>\n\n\n\n

So, should employers request such a waiver?<\/h2>\n\n\n\n

The practical effect of such waivers may be to discourage workers from returning\u2026 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.<\/p>\n\n\n\n

In the face of SAG-AFTRA\u2019s 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:<\/p>\n\n\n\n