This is part two of a prior article on the coronavirus and liability waivers published on Stand-In Central earlier in the pandemic. This article adds information from an anonymous contributor’s experience with respect to being asked to sign a “COVID release,” i.e., a liability waiver related to the SARS-CoV-2 pandemic.
Stand-ins will benefit from the knowledge and experience reported in this article.
Please note that this article does not constitute legal advice. We recommend consulting a lawyer to vet any claims made in this article.
Also: This post is part of Stand-In Central’s deep-dive series into the coronavirus pandemic as it relates to stand-in work in TV and film. For more posts in the long-running series, visit https://standincentral.com/coronavirus.
— The Editor
Recently, a non-union production in New York City booked an anonymous talent for a photo shoot. The booking occurred more than a week before the shoot date, which was to be on a Monday and Tuesday in late July 2020.
On the Friday before the shoot, around 6pm after the close of most business, the production asked the talent to sign a “COVID release.”
This article reports the story as told to Stand-In Central of this anonymous talent’s booking as it pertained to a COVID release. While the story doesn’t pertain to a stand-in, the story may prove valuable and insightful for union and non-union stand-ins working during the SARS-CoV-2 pandemic, in the event they are presented with a COVID release as a condition of work.
This is a very serious consideration for stand-ins, because it has ramifications on your ability to seek damages, medical reimbursement, or other compensation in the event you become ill with COVID-19, and in the event that illness originated from the job.
Signing a “COVID release,” an assumption of risk waiver, and/or a liability waiver may have the effect of your taking sole responsibility for your contracting coronavirus on the job, as well as holding harmless the production company or any of its associates on the job — even in the event that negligence in safety protocols leads to your infection.
The COVID release the production wanted the talent to sign likely was created from an online template.
Given the similarity in wording, the template used to create the COVID release may have originated from this “COVID-19 Liability Waiver Form Template” found on JotForm. (Have a read to understand what declarations the talent would have made in signing.)
Signing the release would have held harmless the production company, the ad agency, the photographer, and other businesses with an interest in the photo shoot, in case the talent got infected with the novel coronavirus on set.
Despite being booked for the job, the talent refused to sign the COVID release. The requirement of a COVID release was not provided in the booking details. Instead, it was a surprise requirement on the weekend before the Monday morning shoot.
After some negotiation, the talent learned there was a second waiver the talent would also have had to sign in order to be present on set, which was not initially presented to the talent along with the first COVID release.
In the end, the talent would not sign any such release.
As a result, the production company, on the Sunday before the next morning’s photo shoot, opted for different talent. The originally booked talent lost the job, the compensation for which the talent described as “lucrative.”
What Was This COVID Release?
JotForm describes a COVID liability waiver as this:
A COVID-19 liability waiver is used to release a business of any legal responsibility if their customers contract the coronavirus while buying the business’ products or receiving the business’ services. With this free online COVID-19 liability waiver, businesses of any industry can seamlessly accept signed liability waivers online. Just customize the terms and conditions to match your needs, share the form with your clients or customers to fill out on any device, and watch as responses are securely deposited into your JotForm account — easy to view, manage, and automatically convert into PDF documents.
Obviously, not all COVID releases are the same, and they can be tailored to meet the specific needs of the provider. That is, the provider of the COVID release can make the release as onerous or lax as they so choose.
What Lurked behind This Production’s COVID Release?
The talent refused to sign the initial COVID release which tracked the language of JotForm’s COVID release.
After some negotiation, the talent was asked what language in the COVID release the talent found objectionable.
The talent instructed that the last three paragraphs were objectionable. Those paragraphs were specifically aimed at releasing the production company and others on the job from any liability “with respect to any bodily injury, illness, death, medical treatment, or property damage that may arise from, or in connection to, being on set.”
The talent had no objections to other paragraphs in the COVID release. The other paragraphs in the COVID release required the talent to acknowledge the pandemic existed, and to attest that the talent did not have COVID-19 symptoms, attest that the talent would follow CDC recommended guidelines, etc.
The production obliged the talent’s request and provided a revised COVID release, which omitted the first two of the three objectionable paragraphs. After review, the talent saw no specific need to omit the third paragraph, so on its face, this new COVID release was acceptable for the talent.
In essence, this revised COVID release with omissions simply required the talent to acknowledge the pandemic and attest that the talent did not have symptoms and would follow CDC guidelines. The revised COVID release did not release the production or others on the job from liability.
However, what lurked behind even this revised COVID release was another release the talent would also have had to sign.
When presented with the revised COVID release, the talent was also provided with a contract between the production company and the ad agency and its client. More accurately, it was an addendum to the production company’s agreement with the ad agency and its client. This addendum to the production company’s agreement explained:
Production Company shall require each individual present at the production to execute (i) an Assumption of Risk/Waiver of Claims attached hereto as Exhibit A and (ii) a Compliance with COVID-19 Health and Safety Protocols attached hereto as Exhibit B.
In other words, the production company had a contract with the ad agency and its client that the production would not have anyone present on set of this photo shoot who had not signed an assumption of risk waiver.
What Did the Assumption of Risk Waiver Say?
The Exhibit A, which was the second release the talent would have had to sign, was titled “Assumption of the Risk and Waiver of Liability Relating to Coronavirus/COVID-19.”
The whole language of this waiver was:
The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. COVID-19 is extremely contagious and is believed to spread mainly from person-to-person contact. As a result, federal, state, and local governments and federal and state health agencies recommend social distancing and have, in many locations, prohibited the congregation of groups of people. The Producer takes the pandemic very seriously and has implemented measures designed to reduce the spread of COVID-19; however, the Producer cannot guarantee that you or your personnel will not become infected with COVID-19. It is possible that traveling to or from, or being present at or participating in, the above-referenced Production could increase the risk that you and/or your personnel contract COVID-19.
By signing this agreement, I acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that I, and/or my personnel, may be exposed to or infected by COVID-19 by traveling to or from or being present at or participating in the Production, and that such exposure or infection could result in personal injury, illness, permanent disability, and death. I understand the risk of becoming exposed to or infected by COVID-19 at the Production may result from the actions, omissions, or negligence of myself or others, including, but not limited to, Producer employees, clients, contractors, or vendors.
I VOLUNTARILY AGREE TO ASSUME ALL OF THE FOREGOING RISKS AND ACCEPT SOLE RESPONSIBILITY FOR ANY INJURY, ILLNESS, DAMAGE, LOSS, CLAIM, LIABILITY, OR EXPENSE, OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DISABILITY, AND DEATH) THAT MAY OCCUR TO ME OR MY PERSONNEL IN CONNECTION WITH OUR TRAVEL TO OR FROM OR PRESENCE AT OR PARTICIPATION IN THE PRODUCTION (“CLAIMS”). ON MY BEHALF, AND ON BEHALF OF MY PERSONNEL, I HEREBY RELEASE, COVENANT NOT TO SUE, DISCHARGE, AND HOLD HARMLESS THE PRODUCER, ITS EMPLOYEES, AGENTS, CLIENTS AND REPRESENTATIVES, INCLUDING BUT NOT LIMITED TO THE CLIENT AND AGENCY, OF AND FROM THE CLAIMS, INCLUDING ALL LIABILITIES, CLAIMS, ACTIONS, DAMAGES, COSTS OR EXPENSES OF ANY KIND ARISING OUT OF OR RELATING THERETO. I UNDERSTAND AND AGREE THIS RELEASE INCLUDES ANY CLAIMS BASED ON THE ACTIONS, OMISSIONS, OR NEGLIGENCE OF THE PRODUCER, ITS EMPLOYEES, AGENTS, AND REPRESENTATIVES, WHETHER A COVID-19 INFECTION OCCURS BEFORE, DURING, OR AFTER PARTICIPATION IN ANY PRODUCER PROGRAM.
I agree that if any provision of this agreement is deemed unenforceable for any reason, that provision shall be severed and all remaining provisions shall continue in full force and effect.
So, Two Layers of Liability Waivers??
It would seem that as a condition of working with the ad agency and its client, the production company signed a contract that anyone working on the job would sign a liability waiver (Exhibit A) that would protect the ad agency and its client from any claims related to infection by SARS-CoV-2 on this photo shoot.
Thus, it would seem the talent would have had to sign Exhibit A — a liability waiver — in order to be present at and work on the photo shoot.
It is not exactly clear why the talent would also have to sign the first-presented “COVID release,” especially when the production company agreed to alter its language to remove any release.
But given that the COVID release included testifying that the talent did not have symptoms consistent with COVID-19, it may be that the COVID release primarily served to clarify that the talent did not show up to set knowingly or potentially having COVID-19. The release paragraphs in the original COVID release were mostly redundant when considering the language of Exhibit A.
The point is that signing a liability waiver may be hard to get around in the event that the production company and its clients (the ad agency and its client) forged a contractual agreement that everyone waive COVID-19 liability as a condition of being present on the job and working. This is because the production company (at least in this case) was contractually bound to bar anyone from presence on the production unless that person had also signed the Exhibit A liability waiver.
Another point is that the talent was left in the dark about any waivers at booking, and was left in the dark about Exhibit A when presented with the first COVID release. Perhaps the presumption was that if the talent would sign the COVID release, the talent would also sign Exhibit A because Exhibit A was basically redundant if the COVID release was signed — in that both documents held harmless the main parties in the photo shoot.
Talent Leverage in Negotiating on Liability Waivers
In this case, the talent was uniquely leveraged in negotiating on the COVID release. For one, while the talent felt the job was lucrative, the talent was also willing to walk away from the job over the COVID release. The ability to walk away from the job gave the talent leverage. If the production tried calling the talent’s bluff and threaten to book other talent, there would be no bluff — the talent would simply let the production do so at their own peril.
Also, time was running out. The COVID release was presented to the talent around 6pm on the Friday evening before the Monday morning shoot. The weekend had begun, so surprises in the production schedule might be harder to communicate or tolerate.
Furthermore, the talent’s sizes were used in finding wardrobe and jewelry, so any change in talent might have implications in shopping on a weekend during a pandemic for additional wardrobe or jewelry.
While it was unclear whether there was any other talent working on the upcoming job, the talent was believed to be the only talent working, giving the talent possibly more leverage. If the entire two-day shoot was crafted around this one talent, and if this one talent suddenly was lost last minute, that could have a significant negative impact on the photo shoot and overall production.
As for finding replacement talent, that might also be hard last minute, giving some additional leverage to the talent. However, the talent believed there was not much leverage on that point. The talent believed that if production really wanted someone else last minute, they probably would be able to find someone else. And the talent believed for such a lucrative job, another talent would take the job and sign any COVID releases.
Considerations the Talent Made in Taking a Stand against a COVID Release
It was explained to the talent in negotiating the COVID release that “all safety protocols will be followed.” But that argument actually worked against the interest of having the talent sign the release. If all safety protocols will be followed, then production doesn’t need to obligate signing a COVID release. Why? “Because all safety protocols will be followed.”
In negotiating not signing a COVID release, telling the talent that “all safety protocols will be followed” is a actually a non-sequitur, as it doesn’t have anything to do with the liability from which the COVID release aims to release production. At issue was not so much safety, but liability.
That is, the talent was not so much concerned about contracting SARS-CoV-2 on set or that safety would not be a concern. Rather, the talent was concerned about giving away any rights to seek damages in the event of negligence on set that might lead to contracting SARS-CoV-2.
While production appeared to agree in writing to follow CDC guidelines, WHO guidelines, AICP’s “General Practices for All Worksites” and “Production Specific Departmental Guidance,” and Reopening New York state guidance, some of the guidance in the production company’s contract with the ad agency and its client contained links to items no longer found on the New York State website (i.e., the links were already broken). This fact meant it would be impossible to know for sure what protocols the production company was declaring it would follow.
Also, what CDC and WHO guidelines the production company would follow were unlinked and undeclared, so it would be hard for talent to know outright what protocols to follow and what protocols not to follow.
This is especially important for on-camera talent to know, because the talent’s work may mean that other crew members approach them within the widely recommended six-feet zone of distance in order to adjust set decorations, props, wardrobe, hair, or makeup. Doing so would be against protocol, as it would violate a talent’s six-foot zone of distance. If this happens repeatedly to the talent by different people, the risks to the talent increase, and the significance of signing a liability waiver more damning.
Also, while a production may agree in writing to follow protocols, without the ability to fault the production for negligence in following protocols, there is no protection to the talent in the event everyone on set follows protocols but one person doesn’t (even just once, accidentally or recklessly) in a way that causes infection.
In a way, a liability waiver acts as a sort of license for conduct that fails to meet protocol, because in the event of such conduct, the talent has no recourse, having released liability with the COVID release and liability waiver. Because the talent has held harmless a production, the talent would find it hard to go after production if they largely then flout protocols on the job. (In such an event, there might be legal grounds for an allegation of contract misrepresentation.)
Additional Considerations for Talent Who Don’t Know What Exactly They’re Shooting
The talent only had a general idea of what was being shot in the two-day shoot. The talent was not given a shot list or any storyboard in advance to see how exposed the talent might be.
While the photo shoot would not apparently shoot the talent’s face, it was not clear whether the talent could wear a mask at all times. Sometimes reflections become an issue in a photo shoot, and if a mask shows up in a reflection, the talent might be asked to remove it. Depending on the color, a mask may serve to bounce light in a problematic way, which may also prompt production to have the talent remove the mask. (Arguably, the talent could refuse such a request to remove a mask, citing the talent’s own signature on a document attesting that the talent would follow CDC guidelines.)
It’s hard to say for certain what would be asked of talent, but without having that information disclosed, the talent can’t make advance safety decisions that might further affect the talent’s decision to sign or reject a COVID release.
The Price Tag to Sign a COVID Release
Lastly, having talent sign a release to hold a production and others on the production harmless is a significant and expensive ask.
Signing one could mean that in the event of infection, the talent could lose work, face serious hospital bills, or even face death, and not be entitled to any compensation for such losses and damages. In the event the talent is working as an independent contractor, and in the event that job classification is not disputed, then the talent would not be entitled to workers’ compensation insurance. (State laws may vary on classification of workers and their eligibility for workers’ compensation when working as an independent contractor.)
For a production to ask talent to sign a COVID release or liability waiver is to ask for a “freebie” from talent that has serious monetary implications. Perhaps if a production wants talent to sign a COVID release, it can’t be required without a price tag associated with it. Then, the talent can consider: How much money is worth the liability?
Asks That Talent Might Make
In the event you are presented with the requirement to sign a COVID release, what follows are some requests you can make.
Ask for More Money to Sign the Release
As mentioned just above, you can seek additional compensation in exchange for signing the waiver. In effect, you will still be signing the waiver and holding the production harmless in case you get infected while working, but you will hopefully be receiving an amount of money that will make you feel more comfortable in facing that potential. It’s unclear what amount you should seek, but given the seriousness of the requirement to sign a release, the amount should sting production.
That said, the amount should be reasonable considering the stakes in taking the job. Each person will have a different price tag. The talent recommended asking for no less than $1000 on top of the rate, and if rate is already large, consider asking for more than $1000.
Ask Production to Omit Any Release Language
Another request might be to have production remove any release language from a COVID release, so that you only sign off on accepting risk, attest you are negative for the novel coronavirus, and agree to follow health and safety protocols. It may be that production is asking too much of you in asking for a release, and more so it simply wants to make sure you don’t come to work sick, and that you follow safety protocols.
Ask for a Waiver of Any Requirement to Sign a Release or Waiver
If the production has a contract with the ad agency or its clients like in the story above, requiring everyone present to have signed a liability waiver, you can try asking for a waiver of that contract requirement. So you are essentially are asking of a waiver of the waiver requirement.
Doing so would help contractually formalize your ability to work on set without a COVID release or liability waiver. Of course, the production may refuse to provide a waiver of that requirement, but it is something you can try requesting.
What Was Learned from Resisting the COVID Release
COVID releases are new. It is not as if COVID releases have been in the entertainment industry for years, or even for six months. So we’re all trying to figure out their place in production and how much room there is to negotiate about them.
Which means: We’re all still learning about them.
There are a number of questions that COVID releases bring to the forefront:
- Should ad agencies require them from production companies?
- Should production companies require them from talent?
- Should talent sign them?
- Should agents negotiate for more money if they are required?
- How should agents handle negotiations for clients who won’t accept COVID releases as a job requirement?
- How much money is signing a COVID release worth to talent?
- Are COVID releases enforceable?
- Are COVID releases standard now, or are they still very much debatable?
Productions may peer-pressure you into believing it is standard to sign a COVID release. But COVID releases are a relatively new phenomenon, and just because talent in recent productions may have signed them, that fact does not mean the practice is cemented in stone or beyond reproach or attack.
In fact, it may become standard for talent to fight a COVID release — if you start fighting today any COVID releases presented to you.
Surely, if productions go unchecked in their ability to ask for COVID releases as a condition of work, then productions will feel more empowered and emboldened to ask for them free of charge from talent. If talent are desperate to work and easily replaceable, the economic calculation for talent may be to sign the COVID release and hope for the best rather than walk away from the job.
But if productions start to get checked by talent, who resist or refuse to sign a COVID release without additional compensation, productions may start to learn that talent actually care about waiving liability and the dangerous implications, and may realize productions can’t just slip them in.
It may be that higher-profile talent who are arguably less replaceable have more power or ability to fight off COVID releases. It may also be that higher-profile talent can lead by example in ensuring productions do not ask for COVID releases from talent, or else face wrath, production troubles, or some other kinds of damages.
But if talent consistently fight COVID releases when they are presented to them, then one consequence might be that productions may learn that requiring them will delay negotiations and talent bookings, especially when they are required for free, with no significant dollar amount attached.
SAG-AFTRA and COVID Releases
It is not clear at press time whether SAG-AFTRA will permit members to work under a COVID release.
According to a post on its website on June 11, 2020, SAG-AFTRA seems mostly to be collecting information for now. The union says, in full:
SAG-AFTRA has learned that some employers are asking performers to execute various forms containing assumption of risk language and/or a COVID-19-related liability waiver as a condition of employment.
SAG-AFTRA has not agreed to permit the use of any such forms or language, and members are instructed not to execute any form containing such language until further notice.
If you are presented with any form containing assumption of risk language and/or a liability waiver, SAG-AFTRA would appreciate your assistance in alerting us of that production by emailing a copy of the waiver and name of the production to email@example.com.
Note that SAG-AFTRA uses the phrase “until further notice” when it comes to signing any COVID-19-related liability waiver: The union will not permit members to sign them at the time of the announcement … but will SAG-AFTRA permit members to sign COVID releases in the future?
Financial core nonmembers and nonmember objectors in SAG-AFTRA are not subject to SAG-AFTRA membership rules, so those actors and stand-ins should be able to sign COVID-19-related liability waivers even though members presumptively cannot. Obviously, though, considering this article, signing a COVID release has serious health, safety, and even economic implications that nonmembers may want to consider in spite of their freedom from union membership rules.
What to Do?
Now may be the best time to experiment with trying to book work, and if presented with a COVID release, refusing to sign it. You might end up losing the job, and if you are okay with that, you stand to gain more information about COVID releases and negotiating around them than talent who simply sign them and do the work at their own peril. You may end up having success in refusing the COVID release and still landing the job, or having success in landing a significant amount more in compensation in agreeing to sign a COVID release.
As a union stand-in, you are likely working on a job as an employee, which should afford your workers’ compensation coverage in the event you can provide evidence that you came down with COVID-19 as a result of your stand-in job. In the event you are standing in in California, which currently has the presumption that if you came down with COVID-19, you got it at work, you may feel less burdened to prove the origin of your coronavirus infection because the presumption is that you got it at work unless the employer can prove otherwise.
This all said: Good luck. COVID releases generally are stacked very much against workers, both employees and independent contractors, in that signing them may be presented as a job requirement. But don’t forget that you may have some ability, even power, to negotiate them. When better to experiment with those abilities than now, when COVID releases are still new?
Have any experiences signing or refusing to sign a COVID release? Share your experiences for others to read in the comments below!