Heidi Bruce, Principal |
First published in TalentPay Compliance Review Quarterly – September 2020 |
There is a lot of controversy at the moment about whether businesses can require people to sign COVID-19 waivers. Whether this is talent or crew on a shoot location, or customers of a shop, gym or restaurant, there are concerns about exposure related claims. Production companies and advertising agencies now face significant costs and risks in running COVID safe productions, so it is a reasonable question – can they use these waivers or not?
Even with the best safety measures in place, businesses are looking to protect themselves from liability for an unforeseen outbreak. In Australia, we have heard of production companies requiring talent and others to sign waivers. In this article Heidi Bruce from Anisimoff Legal, considers whether these waivers can be used, whether they would be enforceable, and how businesses can protect themselves.
The signing of waivers is a complex area, and it is definitely not as simple as signing a slip of paper to avoid all liability.
In the US, there is current debate over whether to change the laws to shield businesses from COVID liability, with the idea being this would help businesses re-open for trade without fear of law suits over COVID exposure. In some States in the US, law has been passed giving protection to employers, and other States are considering it. In Australia no special legislative protection has been given to shield businesses from COVID-19 liability.
In Australia there are many considerations to take into account, as to whether a waiver will be an effective barrier against legal claims. There are various legal issues with the enforcement of waivers including:
- At common law the company may be liable for negligence if it breaches a duty of care, and there are legal hurdles with relying on a waiver. Not all waivers are equal. Generally, the courts will scrutinise any waiver and are reluctant to uphold them or extend their reach. Waivers can be set aside if (a) there was inequality in bargaining power (like an employer/employee); (b) inadequate notice of the waiver has been given or it is not clear enough; (c) there was no consideration (payment/value exchange). If liability for negligence is to be waived, this must be done in very clear terms in the waiver. Even then, courts may set aside a waiver if the business was guilty of negligence for foreseeable risks, or misconduct.
- There are non-excludable consumer guarantees under the Australian Consumer Law that require businesses to provide services to consumers with due care and skill, which (depending on the situation) may apply.
- Most importantly here in Australia you have Work Health and Safety (WHS) laws in each State and Territory, which cannot be contracted out of. Under WHS laws a person conducting a business or undertaking (PCBU) has a duty to ensure the health and safety of workers while at work, as far as reasonably practicable. A PCBU may include a production company, self-employed crew members, and agencies responsible for advertising and event production. A “worker” would include employees and contractors or subcontractors and their employees. A worker has duties to take reasonable care to not put their own, or others’, health and safety at risk. In Australia a PCBU has WHS duties to provide a safe place of work and this would likely extend in a COVID-19 environment, to cleaning, social distancing and so on. A waiver cannot override these basic WHS obligations, and can be void if it attempts to do this.
So even if you have a crystal clear waiver, it is not bullet proof. Talent are also within their rights to refuse to sign it if they consider the waiver unreasonable.
The MEAA has issued recent guidance to the industry about asking talent to sign COVID-19 waivers. The MEAA takes the view that talent should not sign documents that waive an employee’s rights to sue for damages, and it has signalled that some of these COVID-19 waivers contain provisions that are unreasonable and in some cases unlawful. This may increase the difficulty with having talent or talent agents sign these sorts of documents, in addition to the issues raised above. This also raises the question of whether a company can refuse to engage a talent if they do not sign a COVID-19 waiver. If the waiver is reasonable then the answer is yes they can refuse. However if it is unreasonable or excessive it could be considered unenforceable because of the duress being placed on the talent.
A declaration on certain COVID-19 related risk issues is reasonable and acceptable under WHS laws, for instance that the talent will follow all safety guidelines and directions, will take reasonable care for their own health and safety, are not suffering symptoms and have not travelled to certain areas in the last 14 days. In addition, it could be valuable to build in other safeguards requiring the talent to:
- notify and not attend work if they are unwell,
- report concerns regarding health and safety,
- follow any public health and government rules regarding COVID-19.
This sort of thing may be useful, although it is not possible to avoid liability altogether.
We must be clear though, while there are limitations on their use, there is no blanket prohibition on waivers either. It is a complex area and there may be circumstances where a carefully drafted and appropriate waiver may and should be used. If a person was to be on set where they are not a worker, for example an additional client representative who was not required to be there, or perhaps a member of the public or customer who was going to be filmed in a production. This is more of a grey area as they may not be ‘workers’ as such, but again parties have the right to reject signing it, and it would be subject to the above considerations.
The best measure is to follow the Australian Screen Production Industry COVID-Safe guidelines (link), have a risk management plan in place, consider a declaration by workers above, and to seek advice for individual concerns that may come up.