If you’ve returned to work or are thinking about returning, any reasonably prudent producer has one thing on their mind: liability.
Managing risk factors before, during, and after production is the foundation for a successful shoot. But in the age of Covid, the film and TV industry has been forced to swim in deeper waters. When it comes to ensuring your cast and crew are safe, Covid-19 liability waivers have become a common solution, and an essential part of the pre-production process.
But as we’ll cover in this post, Covid-19 waivers are a bit more complicated than simply getting a crew member to sign a form. To avoid sickness on set and getting shut down, it’s helpful to know a bit more about these waivers so you can stay compliant.
While there are many ways to tackle these waivers, traditionally, there are three main types to be aware of. Before we get into these types, we’ll briefly cover the need for them and basic liability.
Let’s get into it.
Wherever people gather, risk of transmission is possible. While we may not be able to control this, we can mitigate the spread of the virus.
Covid Line Producer Cari Waterbury and Safety Compliance Services dispel myths and rumors about producing during the age of Covid-19. You can watch the full webinar below.
As professionals in the entertainment world, our job depends on people gathering together. So, protective measures are particularly important because the risk here is simply greater. Think about TV alone - it’s hard to produce a show with less than 200 people!
We can practice good basic hygiene, wear personal protective equipment, and socially distance. But transmission is still possible.
People still go to the grocery store. They see their doctor. They go to socially-distanced outdoor events. Most working people will at some point have had contact with others and environments outside of their bubble. Very rarely does a person have the luxury to only be in two places: work and home.
So then, what happens if someone gets sick?
The short answer is: the production company.
Governments often favor the worker, and in states like California, if a worker contracts Covid-19 and they’ve physically been to their workplace for a significant amount of time, the court will likely assume that the worker contracted it at the workplace.
Public Health Departments have strict rules about the workplace: if there are 3 or more cases in a span of 14 days, this is considered a cluster and the workplace will need to shut down immediately.
Because we can’t control people’s behavior outside of work, the production company has to have strong screening, testing, and sanitation logistics implemented into their production’s flow. At this stage, there’s really no way of getting around this. These protections for others safeguard the production itself.
And because the employer carries so much responsibility, many companies producing non-union work are implementing waivers of liability.
While waivers of liability can prevent many future issues, they do have some legal nuances important to note. Let’s dive in.
If you’re working on a non-union film set during the pandemic, chances are you’ll be greeted with a release and waiver of liability, a legal acknowledgement that you are returning to work at your own risk and that you won’t sue or hold the production company liable if you are exposed to coronavirus.
A waiver of liability will include acknowledgement statement such as these:
While you may think you’re protected so long as you gather signatures, there’s a big question mark about the legality or legitimacy of liability waivers.
The American Bar Association says no - that liability waivers do not provide blanket immunity to businesses. Instead, these waivers only protect companies against their own ordinary negligence (mistakes and careless behavior), but not against gross negligence (deliberate and reckless).
Employees are usually protected under the law, and many states and courts will favor the worker. But there are a few things that will increase the likelihood of your state honoring the waiver.
In order for your waiver to hold up, the language must be easy to understand, so the reader has a full grasp on exactly what risk they are assuming.
There are a few ways to do this.
Formatting your waiver so that each line requires the signer’s initials, leaves little room for misinterpretation of consent. It’s generally much more digestible as well.
If you use Wrapbook, simply upload your Covid-19 waiver. The Safety Compliance Services waiver is a great example of one that keeps it clean and simple, ensuring consent for each and every line.
If this doesn’t work for you, create your own waiver within . Draw up, edit and adjust language that best suits your production’s needs. Sky’s the limit, for this, and all forms you want your cast and crew to sign.
A waiver cannot be embedded into any other document - it should stand alone, so there is absolutely no risk of confusion for the signer. They will know exactly what it is and what they are signing, separate from other forms.
This is especially important when it comes to whether or not your waiver is enforceable.
Because every state will have their own way of doing (and viewing) things, it can be a bit of a coin toss ensuring your waives will even work.
Covid-19 waivers are a type of “adhesion contract.“ All that means is that they are a “take it or leave it” type negotiation. The signing party has no power to negotiate or modify the terms - they either sign it or they leave.
We sign these all the time when we agree to the latest smartphone update, credit card agreements, etc.
But of course, they’re viewed a little differently when it comes to a person’s health and safety.
Due to the unequal bargaining power in these negotiations, oftentimes they can’t be enforced. However, the goal is to never get to a point where you need the court to make that decision. You can do that by ensuring a couple of things...
How do we define “unreasonable?” Well the courts have the final say here, but an imbalance of obligation imposed by the waiver, or any other statement that might exploit their situation, would likely fall under that category.
Ultimately it is the courts who decide what’s truly unreasonable, and what’s not.
If you have language in your waivers that a non-lawyer would have trouble understanding, the waiver may be deemed unenforceable by the state.
If you haven’t guessed it by now, the rule of thumb - keep language clear so consent is clear.
It’s good to know that most legal professionals advise against waivers of liability on set and all unions will simply not allow it.
If your production company is taking reasonable precautions against the potential transmission of Covid-19 on your set, then there may not be a need for a waiver.
Remember, waivers are in no way a substitute for set safety or compliance. Luckily, there are many services whose sole responsibility is to help you stay Covid friendly. Professionals like those from Safety Compliance Services, will help you abide by health and safety precautions.
This is new territory for even the most seasoned producers. So you may want a bit of guidance on choosing your Covid Safety Officer. But bringing on a pro, can really help lighten the load.
A Covid-19 Acknowledgement is another way to protect the integrity of your set.
An acknowledgement form lays out the risks of returning to work in a pandemic, and informs the signer that the production company is doing as much as they can to mitigate the risk of transmission.
The acknowledgement will also release personal responsibilities of the producer and crew if a case of coronavirus develops. They might even add in a force majeure clause. This is just a clause that excuses one or both parties’ from their obligations if something arises beyond their control, i.e. a global health crisis.
If a case develops, the production company, out of good faith, will file any workers’ compensation insurance claims but cannot guarantee a result. In fact, some states will not even accept Covid-19 as a workers’ comp issue, understanding that and what to do if your production gets canceled before you get to set.
But it’s important to note that unions will not allow their members to sign any document in which their members assume any risk. Technically, an acknowledgement alone is ambiguous. Because of that, it’s not binding.
So what’s the bottom line?
The Occupational Safety and Health Act of 1970 states that the employer is responsible for safeguarding the workplace from recognized hazards likely to cause death or serious physical harm to their employees.
However this law also recognizes the need for workers and employers to have separate and dependent responsibilities in order to produce safe and healthy work environments.
A film, photo, or music set is an ecosystem requiring all participants to do their part.
Employers are required to provide the resources and strategy needed to provide a safe set - or at least hire the right people for the job.
And the crew should stay in agreement with certain standards of mutual care because even an entire safety team is not large enough to monitor every crew member all of the time.
So when it comes to health and safety, we are in it together.
With the controversy of waivers of liability and the ambiguity of risk acknowledgements, what can be done to protect your company’s liability and promote the feeling of safety throughout your set culture?
A code of conduct is a document that governs the responsibilities and standard of care that all people on set must follow. It also states the guiding principles, mission, and values the organization represents.
This is a new device used in the entertainment industry to get all participants on the same page.
The code of conduct can be sent out with any start paperwork in addition to company written safety protocols, governing county and union guidelines.
In this case, an acknowledgement that all information has been reviewed and understood would be a wise and valuable supplement!
Stay safe and paperless when you can. Digital startwork solutions are always best.
Your startwork should also include information regarding workman's compensation and CARES act resources and response policies. This will ensure that all persons invited to set have a complete understanding of the on-set safety standards. It will build confidence in the production company and will encourage invited professionals to be active participants in the health and safety of the set.
Whether you choose to use waivers or not, maintaining health and safety guidelines regularly is the new on-set reality. If you need any Covid-19 resources to help you navigate, we’re here for you. Feel free to reach out to us if you have any questions or want to learn more about how to use Wrapbook to stay safe and compliant.
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