The questions raised by participants during the first session of our virtual event series, Pandemic Compliance and Safety at Live Events, prompted us to bring a fresh group of panelists, including a lawyer, for the second session we hosted in March on event safety compliance and legal liability. Legal issues are top-of-mind right now as
88% of our session attendees shared in our event poll that they plan to host an in-person event this year.
Below is a recap of how our panel addressed the top nine legal questions about event safety. Since it’s legal information we’re sharing, we have to make the standard disclaimer: please seek the advice of your own legal counsel before acting on anything you read here.
Missed the Pandemic Compliance and Safety at Live Events panel?
#1. Can your event have a vaccination requirement?
Ryan Costello, co-founder of Event Farm and host of our virtual event series, asked about the topic on everyone’s mind: the legality of attendee vaccination requirements. Chris Deubert, general counsel for D.C. United, said you can require vaccinations, but it raises a potential legal concern under the Americans with Disabilities Act (ADA).
Per the ADA, you must let anyone in regardless of a disability or perceived disability, but the law does permit exclusion of individuals who pose a direct threat to others. Despite this exclusion, Chris said you could still come up against “creative legal challenges.” For example, if we’re at herd immunity, it may not be reasonable to exclude someone because they haven’t been vaccinated. You would also need to provide reasonable accommodations to someone if they haven’t been vaccinated for religious or medical reasons.
Stephanie Krzywanski, CMM, CED, partner and Chief Operating Officer at JR Global Events, said people might feel left out and alienated by a vaccination requirement or by the segregation at your event of attendees by vaccination or testing status.
A vaccine requirement raises practical issues too, said Mac McCullough, Ph.D., associate professor at Arizona State University and health economist for the Maricopa County Department of Public Health. Considering the varying efficacy windows of the different vaccines, how do you determine when it’s safe for a vaccinated person to be around other people?
#2. Can you ask people about their vaccination or testing status?
An event organizer could ask for personal healthcare information because you are not bound by the Health Insurance Portability and Accountability Act. HIPAA governs healthcare providers and employers in certain situations.
However, you must comply with other laws governing the collection and retention of personal data, such as the European Union’s General Data Protection Regulation (GDPR), California Consumer Privacy Act (CCPA), and other forthcoming state laws. Be careful how you collect and treat personal information.
#3. Can you ask attendees to sign a waiver?
Chris said a waiver is questionable in enforceability, especially when people feel they have no real choice but to sign it. Besides, event organizers may not be protected from legal action even if attendees sign a waiver.
#4. Do you need a code of conduct?
A more effective tactic is requiring attendees to sign a mandatory code of conduct during registration. If they don’t sign it, they can’t register. Period. With their signature, they agree to the event and venue’s rules and regulations, and assume all risks.
In pre-event emails, remind attendees about the code of conduct’s terms and conditions so they’re prepared to abide by them while on site. Convey a message of responsibility: we’re all in this together—attendees as well as staff on the organizer, client, venue, and contractor teams. Since half the spread of COVID is through asymptomatic carriers, attendees must think about other people. Don’t come if you’ve been around anyone who’s been exposed to COVID. Don’t come if you’re not feeling well. Behave reasonably while you’re here to protect yourself and others.
Offer a lenient refund policy so people have no qualms about canceling if they think they may have been exposed or may be a risk to others.
#5. Is there a simple way to do a health screening on site?
When attendees arrive on site, they can do a contactless check-in using event technology. During this process, require them to complete a health screening questionnaire. Follow the CDC’s COVID screening protocol with questions about symptoms, exposure, testing status, etc.
#6. Why and how do you address indemnification?
Your venue and vendor contracts should include an indemnification clause that requires them to abide by the code of conduct and any local or state rules, regulations, and laws pertaining to COVID. This clause should indemnify you if you get sued as a result of their negligence. For example, if a server with COVID spreads it to some of your attendees, the catering vendor should indemnify you, that is, cover the costs if you get sued. You should also require vendors to name your organization as an insured on their insurance policy, so you’re covered by their policy.
You must discuss liability with your venue. If one of their team members doesn’t follow the agreed-upon rules and you ask them to leave, who covers the cost of replacing them—the venue, client, or event organizer? What if someone on the event organizer’s staff or an attendee gets ill from spread on site? Who pays for that?
#7. Can you get sued if someone gets COVID?
You can’t stop anyone from trying to sue. If you’re an event planner, make sure your business is organized appropriately, for example, with an LLC structure, so your personal assets aren’t exposed. Make sure you have the right type of insurance coverage, for example, property and general liability commercial coverage, to cover most, if not all, of the cost of a lawsuit, including attorney fees.
Know and follow the COVID-related guidelines and regulations in the venue’s jurisdiction. In some areas, these policies have the force of law behind them, so if you don’t enforce them, you are per se negligent.
Document everything you do to keep people safe, including correspondence with attendees, the venue, and other contractors about the code of conduct. A litigant would have to prove you were negligent, and, because of that negligence, they were damaged. Lawsuits are always a possibility, but Chris hasn’t seen a single meritorious lawsuit on this issue.
It’s difficult to prove someone got COVID at a specific event, said Mac, given the amount of community spread. With limited public health resources, contact tracing hasn’t been a priority. It’s hard to trace one individual case back to an individual person or incident.
#8. Can you require people to wear masks in a state that doesn’t have a mask requirement?
Yes. The courts are more interested in what science (the CDC) says than what a politician says.
#9. Who’s in charge of enforcing the code of conduct and local/state regulations?
Event planners must develop standard operating procedures (SOP) for dealing with COVID. Adapt your SOP to each location and client. Once you have the SOP for a particular event, enforce it at every level. You must get buy-in from the most senior person on the client staff. Don’t allow any exceptions.
Since CDC guidance and local/state regulations are constantly updated, schedule regular conversations with the venue about their responsibilities for COVID protocol. Start with monthly meetings and increase them to a weekly cadence as your event approaches.
Every event must have a Pandemic Compliance Advisor. Everyone must feel empowered to ask people to follow the rules. Determine ahead of time who is going to assume the role of enforcer by ejecting non-compliant attendees. According to polls, people feel unsafe around someone not wearing a mask. You need to intervene in these situations.
Know where you need to focus and where you can stress less. Address what makes people feel safe, for example, lots of hand sanitizer, even though surface spread is unlikely. But prioritize what keeps people safe: ventilation, distancing, mask requirements, and a code of conduct.
Get a head start by downloading this sample code of conduct template and learning about Event Farm’s event safety software. To register for the next panel in the series and learn how to host safe in-person events with the 2021 event planning playbook, click here.