Liability Theater: Can Live Theater Reopen in the Time of COVID-19?

By: Paige Gagliardi

“The show must go on!” …But can it during a pandemic?

The novel coronavirus presents a slew of new barriers for the American live entertainment industry. Broadway has been shut down since March 12and will remain so until June 2021. Over 23,000 live events are cancelled, and an estimated 90 percent of independent venues are expected to permanently close as the entertainment industry faces a loss in revenue of over $160B. While artists and venue owners alike cry out for a safe way to reopen, to return to the pre-pandemic model of live theater could expose venues to an exorbitant amount of liability.

Since the initial industry shut down, unique forms of entertainment production and consumption have emerged. From filming on “closed sets”, to record-breaking streaming of taped Broadway productions, to drive-in concerts, the entertainment industry has begun to adapt. But due to the unique conditions posed by indoor auditorium seating, backstage work, and performance, many concert halls, stadiums, and historic theaters remain closed. In an attempt to provide consistency and to cope with the ever-changing state regulations about reopening measures, entertainment industry unions such as IATSE (The International Alliance of Theatrical Stage Employees) released recovery plans for future live events. In their the 27-page document, IATSE stated their new guidelines for their union venues. These new guidelines require a designated COVID-19 Compliance Officer (very similar to those now seen on every Hollywood set) that oversees and monitors the adherence to protocols and training. Further, the guidelines require a venue to have a written COVID-19 safety plan, reduced personnel, diagnostic testing, daily screening, adequate ventilation, health-safety education, touchless ticket scanning, reduced patron capacity, and paid sick leave for staff pursuant to the Families First Corona Response Act.

But are these internal measures enough to decrease the spread of COVID-19 in a live entertainment environment? They may not be enough in the midst of union infighting and industry turmoil. While the leaders of 12 major unions met in solidarity in May, currently SAG-AFTRA and Actors’ Equity Association, two of the nation’s largest performing arts unions, are now locked in a jurisdictional dispute over the whose territory, meaning whose regulations and personnel, the taping of live theater productions belongs to. And although twelve states have begun enacting legislation to narrow the liability limits related to and stemming from COVID-19, it does not absolve employers of their duty to maintain safe operations for workers and customers.

Under the Occupational Safety and Health Act (OSHA), the employer has a legal obligation to provide a safe and healthful workplace.  Because OSHA does not have any specific regulation regarding the virus, it would fall under the employer’s duty of care. The “General Duty Clause,” Section 5(a)(1) of the Act, requires an employer to protect its employees against “recognized hazards” to safety or health which may cause serious injury or death. For this to be applied to COVID-19 is no obscure fear; although tracking ground-zero of an illness can be hard to prove, companies such as Princess Cruise Lines, Walmart, and at least three elderly care facilities already face wrongful death lawsuits. So, unless the issue of liability over COVID-19 transmission is addressed in future legislation, unions and venue owners must proactively seek to limit any potential liability. Patrons may need to sign a participation waiver before entering, or their ticket may include waiver for any claims arising from the transmission of a communicable disease (just as the back of a baseball ticket traditionally contains a waiver of liability for any physical injuries sustained due to a foul ball).

All that said, unless something changes quickly, the live entertainment industry as we know it could become another casualty of this pandemic. As entertainment lawyer Jason P. Baruch of Sendroff & Baruch, LLP put: theater “is not likely to be economically viable with social-distancing requirements in place that cull audiences by half or more…With the exception of the occasional one-person show, concert or small play, most [shows] simply will not be producible until the theaters can be filled again.

Live theater, with its earliest record in Western history being the 6th century BCE, has survived revolution, oppression and disease; so while there is no doubt live theater will return, upon reopening, it will confront many legal and economic challenges. Live theater may never be the same, and the government and venue responses to these issues of liability will shape how live theater survives and determine when it will flourish again.

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