The Light at the End of the Pandemic Tunnel: Common Questions and Answers for Creative Arts Businesses

As we begin to see the light at the end of the pandemic tunnel, creative arts business owners and employees are wondering how to move forward. From protecting your business as an employer to understanding your rights as an employee or independent contractor, there are many issues to consider.

How Can Employers and Employees Protect Themselves from Liability Concerns?

Business owners in the creative arts industries need to be knowledgeable about how to protect their business from exposure to any COVID-19 liability claims. In the past year, there have been attempts in the Colorado legislature to pass legislation that would waive COVID-19 civil liability for businesses who attempted to rely in good faith to comply with applicable public health guidelines. Those laws have not yet passed (and may not ever pass), so it’s critical for business owners to do what they can to protect themselves from costly claims.

As a business owner, your first step should be to check your insurance policies. Business interruption insurance claims related to the pandemic have risen in the past year, with mixed results for business owners. It is worth speaking with your insurance company to understand your exposure points and whether you can add protection to your policy for claims going forward.

You should also conduct an internal review of your liability waivers with your staff and/or business attorney. Questions to consider include: Do you already have a liability waiver in place that you have your staff, vendors, or independent contractors sign at the time of engagement? Does that document include any language regarding waiving liability arising from COVID-19 exposure in your workspace? Has your staff provided you with written informed consent acknowledging the risks of working with and without a vaccine in the workplace? An attorney can help you wade through these issues and bring your waivers and internal agreements in line with your liability concerns.

An employee or independent contractor in the arts industry also has a duty to be truthful in signing informed consents and reporting COVID-19 exposure. Failure to take reasonable and good faith steps can prevent any claims you may have in the future and could lead to losing your job. Employees and independent contractors should be proactive and ask employers about any questions or concerns you have in relation to public health and safety precautions being used in the workplace.

Can Employers Mandate the Vaccine as a Condition to Employment?

Now that the COVID-19 vaccine has become widely accessible in the United States, employers need to consider if they will require staff to receive the vaccine.  This is a hot topic among employers and employees right now, with guidance evolving from many directions.

Historically, employers have been permitted to require their employees be vaccinated. Both the Occupational Safety and Health Administration (OSHA) and the U.S. Equal Employment Opportunity Commission (EEOC) have issued guidance that also allows employers to require the COVID vaccine. With that guidance, however, there are a few nuances that employers need to consider.

First, employees employed on an at-will basis can be required to have the vaccine as a condition to employment, provided the employer allows for certain exemptions from the requirement, such as for health or religious reasons. The Americans with Disabilities Act (ADA) requires employers to provide a process for exemptions.

Whether you can require a vaccine for currently engaged independent contractors or contract employees will depend heavily on what your agreement says.  Both the employee and employer should carefully review the existing agreement to determine if the vaccine can be mandated. Any new hires with an employment agreement should have a provision included requiring the vaccine as a condition to engagement.

Employers who decide to require the vaccine must ensure that a privacy policy and process is in place that protects employees’ health information. Further, OSHA issued guidance on April 20, 2021 indicating that “[i]f you require your employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is recordable if it is a new case…,” under applicable OSHA rules. This means that if you are requiring the vaccine, you will need to be prepared to follow OSHA’s reporting rules. If, instead of requiring the vaccine, you only recommend that employees receive the vaccine, then any adverse effects to the vaccine are not required to be recorded.

On a more practical level, employers also need to be prepared to lose staff that choose not to be vaccinated. While you can require the vaccine as a condition to employment, you can not force someone to get the vaccine.

What Should Employees Consider When Deciding to Get Vaccinated?

As an employee, it is important to understand that your employer likely could require the vaccine as a condition to employment (except for the exemptions discussed above). If you have a religious or health reason for not getting vaccinated, you will need to provide your employer with that documentation. You will also need to be prepared to find another job if you are not ready to take the vaccine and don’t qualify for an exemption.

Can Employers Provide Incentives to Encourage Vaccination?

Whether you require or just recommend that staff get vaccinated, employers can always offer incentives to their employees and staff to get vaccinated. Whether it’s paid time off, gift cards, or educational events, employers can and should be creative in what they offer.

What Steps Should Businesses Take in Relation to Customers and Patrons?

The pandemic has forced businesses in the arts industry to be proactive and creative in sharing their art with their communities. The pandemic isn’t over yet, and businesses need to continue to be imaginative in how they will share their respective arts with their audiences. Businesses should continue to find new ways to digitize and virtually share their craft. If your industry typically has opportunities for people to gather in close quarters, consider revamping your presentation. This could translate into limiting performance lengths or having intermission free performances to help limit restroom traffic.

Whether or not a business can require patrons or audience members to provide proof of vaccination is a more difficult question. Currently, Colorado has not passed any laws preventing a business from requiring proof of vaccination. But there are some practical considerations that should be kept in mind. While you can turn down service to an unvaccinated person, the ADA still applies to customers, and you must provide reasonable accommodation for persons with medical or religious exemptions. Managing both the receipt of vaccination cards and accommodating permissible exemptions could be quite burdensome for both you and your patrons. You also run the risk of receiving altered or forged vaccination cards without any way to prove validity. And last, but not least, a vaccine mandate for your patrons could lead to a loss of business from patrons who are not vaccinated or who don’t want to share their vaccination status.

In addition to adapting your art to the new pandemic rules and considering whether to institute a vaccine mandate for your patrons, it’s imperative that you continue to broadcast your business’s stance on what other precautions are needed in your establishment. Continue to post signage about whether masks and social distancing are needed. Consider having an informed consent page or a liability waiver as part of your ticket sales and send emails to ticketed patrons about your protocols.  By being vocal and visible about your COVID protocols, customers and patrons will not be caught unaware and will be more likely to follow your rules.

What Steps Should Businesses Take in Relation to Employees and Staff?

As a business owner, you have many priorities. Keeping your employees informed and onboard is high among them. As your COVID protocols evolve, continue to include your staff and employees in your decision making and keep them informed as to how your business will operate. Continue to advise them on current social distancing, mask, and hygiene guidelines and let them know what measures the business is taking to protect them. If you haven’t already, build out a robust internal complaint system so that issues can be addressed early. Open communication with your staff and employees will help stop rumors and provide opportunities for improvement.

Continue to Educate Yourself

Whether you are an employee, contractor, or business owner, it is imperative that you take reasonable and good faith efforts to comply with any applicable government standards and guidance regarding COVID safety. Guidelines are changing quickly (almost daily) which requires businesses to stay proactive and informed. Continue to check sites such as the U.S. Centers for Disease Control and Prevention (CDC) and the Colorado Department of Public Health and Environment  for the most current guidelines and best practices for staying safe in the pandemic.

 

Legal Disclaimer. The information contained in this article is provided for informational purposes only and should not be construed as legal advice on any subject matter. You should not act or refrain from acting on the basis of any content included in this article without seeking legal or other professional advice. The information presented in this article may not reflect the most current legal developments.  No action should be taken in reliance on the information contained herein and we and the author disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this article to the fullest extent permitted by law.  An attorney should be contacted for advice on specific legal issues and situations.

About the author: Poorvi B. Parkhie is a small business transactional attorney serving clients throughout Colorado. When she isn’t helping entrepreneurs launch their dreams, she’s out hiking in the mountains, writing historical fiction, and sometimes doing both at the same time. You can reach her at poorvi@poorviparkhie.com

This resource is provided through CBCA’s Colorado Attorneys for the Arts program.