The Coronavirus, Assumption of Risk, and Liability Waivers: What Stand-Ins Need to Beware in the Return to Work

Analysis

The project appears to be for a pharmaceutical product. It is a photo shoot (outside SAG-AFTRA jurisdiction), which includes non-union video (part of SAG-AFTRA jurisdiction).

SAG-AFTRA offers no protections for performers or stand-ins who might work on this job because it is non-union.

Worker Classification

While it is not clear from the project details, based on experience, more than likely this job would hire a performer as an independent contractor.

Practically speaking, working as an “independent contractor” means that the performer is paid without taxes taken out of the performer’s check.

However, as an independent contractor, this means the performer loses protection under the National Labor Relations Act (NLRA). The NLRA covers employees, not independent contractors.

By losing protection under the NLRA, specifically the performer loses Section 7 rights, which include as “protected activity” the right to concert activity with other employees for mutual aid and protection. That right, lost when a worker is an independent contractor, might prove valuable in the face of health or safety issues on this set during a pandemic.

While there may be argument that despite a classification of “independent contractor” that a performer on this job legally is an “employee,” that argument may be challenging to make.

But if the shoot ends up in New Jersey, recent laws enacted this year come down hard on employers who misclassify workers as “independent contractors.” And it may be that performers on this production meet New Jersey’s criteria of “employee.”

Workers Compensation

As is expected, if the performer is working as an independent contractor, and that performer develops COVID-19 from work on this shoot, that performer will likely be ineligible for workers’ compensation.

As a result, the performer should expect to assume all responsibility for payment of medical bills that follow from such an infection.

Workers’ compensation laws are different from state to state. This production details that it will shoot in either New York or New Jersey.

• In New York, sole proprietors (which the performer may be) are not eligible for workers’ compensation.
• In New Jersey, it appears that independent contractors are not eligible for workers’ compensation, but there are lawyers who will argue that despite your classification as an “independent contractor,” you may fit the definition of “employee” under New Jersey laws enacted in 2020.

Unsettled Work State

“The final shoot will take place on a closed set in NJ/NYC area,” say the project details, so not only is the shoot location unclear, but also are the applicable workers’ compensation and health and safety standards during the current pandemic.

It is plausible that this production will try to shoot on its proposed days of either June 22 or June 29 in the locality that is most permissive of the production.

As of this writing, New York City will not issue film permits through June 15, 2020. That said, New York City needs to enter Phase 2 in its reopening plan before it can even shoot with small crews (no more than ten people on set at a time). New York City major Bill DiBlasio puts it at mid-July 2020 before the city enters Phase 2, so it is unlikely that this pharmaceutical shoot would shoot exactly in New York City because it aims to shoot before Phase 2 is projected to begin.

It is possible that this production will shoot in the “NYC area” by going slightly upstate, which could possibly be in Phase 2 before New York City.

As for New Jersey, parts of which meet the descriptor of “NYC area,” its reopening is in Stages rather than Phases, and Governor Phil Murphy has announced that New Jersey will enter Stage 2 on June 15, 2020. However, whether that Stage is permissive of any productions such as this pharmaceutical production is unclear from the general reopening plan.

It would seem that New Jersey would have to enter Stage 3 before it could permit this production, based on its outline of Stages. Then again, if this is a “small” production with limited crew, it may be that New Jersey’s Stage 2 is like New York’s Phase 2 in permitting production as long as the personnel size is very low.

But, if the production is so explicitly a “closed set,” it is unclear how that would be monitored or policed.

“Adhering to COVID Safety Guidelines”

To what safety guidelines this production will adhere is unclear from the project details, which makes the prospect of signing an “assumption of risk” waiver all the more troubling.

Presumably, the production will need to adhere to some kind of safety guidelines maintained by the locality in which it inevitably shoots. That may mean, say, that a shoot in New York (City) may have different safety guidelines than a shoot in New Jersey.

With that, that may mean a greater assumption of risk for the performer depending on the locality in which this production eventually shoots. Will New Jersey be more lax about precautions than New York City? Will that mean the performer is at a greater risk of contracting SARS-CoV-2 on the job?

It would seem that on its face, without specification of what the production’s “COVID Safety Guidelines” are, it’s hard to estimate how safe the production will be for the performers who take the work or how to measure the efficacy of enforcing those guidelines.

And, again, if the production is so explicitly a “closed set,” that may make monitoring of alignment with safety guidelines harder to police or enforce.

Voiding the Booking

Especially troubling is the passage, “If model is deemed to have a temperature, client holds the option to restrict access to the studio void the booking for the safety of all parties on set. Models submitting must be agreeable to these terms.”

While a performer may show up with a temperature, a temperature does not mean that the performer has COVID-19 or has contracted SARS-CoV-2. The performer may be sick for another reason that is unrelated to a coronavirus.

That said, perhaps more troubling is that the performer’s booking is voided if the performer has a temperature when reporting, rather than receiving some sort of remuneration.

What’s a Stand-In to Do?

More than likely, stand-ins working on SAG-AFTRA productions will not be asked to sign a liability waiver.

But that is not a guarantee.

SAG-AFTRA issued an “urgent notice” to its members on May 14, 2020, instructing its members not to sign anything similar to a liability or assumption of risk waiver.

Specifically, SAG-AFTRA wrote (emphasis added):

The employers and producers remain solely responsible for ensuring the health and safety of all members they employ and no member shall sign any document releasing the employer from such responsibility.

Based on this wording, it’s not as if a SAG-AFTRA member can’t sign such a waiver if served, and that it can’t be enforceable, but it’s that SAG-AFTRA is mandating its members not to sign such a document. (It is unclear whether nonmembers like financial core or objectors would be permitted to sign such a waiver, since this notice does not address them.)

But it’s not clear if this statement by SAG-AFTRA is poorly worded, and that in reality employers cannot have members sign something like a liability waiver and have it be binding. It would seem that SAG-AFTRA would have to negotiate with a producer-employer before requiring a member to sign such a document, as employers usually cannot act unilaterally under the NLRA without first bargaining with the union that staffs it.

If You Are Asked to Sign a Waiver …

Union Jobs

It may be that you are asked to stand in on a SAG-AFTRA job and the casting director asks if you would agree to sign a liability waiver or something similar in accepting that work.

What do you do? You obviously want the work, but in signing such a document, you may free production from liability should your work lead you to contracting SARS-CoV-2 and COVID-19. That fallout could render you sick, out of work, hospitalized, or maybe even dead.

It is not exactly clear what you should do, and it may depend on your own level of comfort (or desperation). Here are some ideas to investigate further, maybe even by calling SAG-AFTRA in advance of such a situation:

• Reject the work outright, and call your SAG-AFTRA local office and/or specifically the business representative for the job and explain what happened to you.
• Accept the work, and call your SAG-AFTRA local office to see if you will be obligated to sign the waiver when you arrive on set. The waiver may not be enforceable, so signing it may be meaningless.
• Accept the work and sign the waiver, accepting the liability. (Stand-In Central generally does not recommend taking this action.)
• Accept the work, show up, read the waiver, refuse to sign it, and assert your Weingarten rights if you are asked to explain why you are refusing to sign it and if you believe being asked may lead to your discipline or termination. This may trigger the production not to pursue the matter further, not talk to you until a SAG-AFTRA rep arrives on set, or continue to ask you questions (setting the production up for an unfair labor practice charge at the NLRB if pursued). More information Weingarten rights are in this podcast episode.

Now, if casting does not mention anything about a liability waiver, but one is sprung on you when you arrive at work, in general, here is what we recommend:

• Refuse to sign it until you speak to a SAG-AFTRA representative first about it.

That way you don’t “sign it then ask questions later.”

Non-Union Jobs or Non-Jurisdictional Jobs (Like Photo Shoots)

If you’ll be standing in on a non-union job or on a photo shoot, you’ll have to weigh things differently, as you won’t have protection from SAG-AFTRA.

For example, you may want to figure out whether you’ll be paid as an independent contractor or as an employee. If you will be working on the job as an employee (meaning, for example, that taxes will be taken out of your paycheck), should you contract SARS-CoV-2 or come down with COVID-19, you may have workers’ compensation protection in your state.

Also, if you are working as an employee and there will be other performers there, concerting your activity for mutual aid and protection (rights guaranteed under Section 7 of the NLRA) may give your group of actors additional safety protections in the event safety is in jeopardy when you work.

If You Do Get Sick

If you end up with symptoms of a coronavirus infection, and you believe that you did or may have contracted it on a job, notify the production immediately.

This generally implies that when you are working on the job, immediately upon arrival, you should get or photograph the callsheet so that you can find important numbers related to the production. If your infection becomes apparent after you leave the job, you will have important phone numbers to call to notify production.

If you are on the job and you develop symptoms, you should report them before you leave work. You should do this not just because it seems like the right thing to do, but in case workers’ compensation will protect you, doing this is an important step in the process.

While you still may have a workers’ compensation claim even if you don’t report your symptoms before you leave work, it may be a bit harder to make your case than if you report your symptoms while on the job. Remember: you may be sick when you are trying to take care of workers’ compensation claims, and you don’t want to further burden yourself when you are ill.

But if you’ve left work and develop symptoms, you may feel at a loss of anyone to notify. In such an event, start by calling the casting director who hired you.

The casting director’s business may serve the production for also payroll and workers’ compensation claims, so contacting the casting director may be a winning direction in which to go if your work on the production has ended and you wound up sick. Otherwise, the casting director may be able to put you in touch with production.

More Later?

As production starts back up, and stand-ins return to work during or after the pandemic, it is to be seen how frequently productions require liability waivers of stand-ins.

It may also be interesting to see whether SAG-AFTRA permits some employers to offer liability waivers as a condition of employment for some stand-in work.

If you have any firsthand experience with signing or being asked to sign a liability waiver during the coronavirus pandemic, please be in touch.

Have you been presented a liability or assumption of risk waiver for work as a stand-in? What did you do? Post your experiences below!