We are on track for Broadway to resume performances at some point this year and what a glorious day that will be! But when that happens, how will theaters and production companies ensure a safe environment for audience members and their employees?
Can Broadway Theaters and Producers Require Audiences to Show Proof of Covid-19 Vaccination for Entry?
Yes. Similar public accommodation businesses have already considered policies requiring attendees to show proof of vaccination status, including Ticketmaster and some airlines. But if such requirements are enforced for Broadway theaters, they must be enforced in a nondiscriminatory manner.
How Can Theaters and Producers Ensure Their Vaccine Requirements for Audiences Are Nondiscriminatory?
If one’s religious beliefs are in conflict with obtaining a Covid-19 vaccine and a theater requires proof of vaccination for entry, such patrons, if prohibited from entry, may claim violation of the Civil Rights Act of 1964, which prohibits theaters and other public accommodation businesses from discriminating based on religion. Such claims are unlikely to be successful in court as the theaters would be mandating vaccination records for all patrons regardless of their religion, but that does not mean that there won’t be lawsuits.
Similarly, theaters are required to provide necessary accommodations to individuals with disabilities under the Americans with Disabilities Act of 1990 and will be forced to decide whether to waive a vaccination mandate requirement, if one is effected, for those individuals where the Covid-19 vaccinations may not be recommended on the basis of disabilities. Should public accommodation spaces not waive any such requirements, we would expect to see litigation regarding the matter. However, in the absence of outright refusal or entry, theaters may be able to provide potential accommodations such as rapid testing or mandated mask wearing for a limited subset of individuals with disabilities for whom vaccination is not recommended.
How Can Audiences Prove They Have Been Vaccinated?
It will likely be done for most via smartphones. Several companies and technology groups have already begun developing smartphone apps where users can upload their Covid-19 test and vaccination information to create digital credentials that can be shown upon entry to certain venues, including The Common Trust Network which has created the CommonPass App.
Can Theaters and Production Companies Require Employees Such as Actors, Musicians, Stage Crew and Other Creatives to Be Vaccinated Before Returning to Work?
Generally, yes, subject to Actors Equity Association and other unions’ collective bargaining requirements. The Equal Employment Opportunity Commission has suggested that employers may implement mandatory vaccination policies as a condition of continued on-the-premises employment. A mere request for proof of vaccination does not actually seek information about the employee’s current health status or impairments and is thus not a “medical examination” in violation of the Americans with Disabilities Act.
How Can Theaters Ensure Their Vaccine Requirements for Employees Are Nondiscriminatory?
The vaccine requirement should be applied consistently in order to avoid legal issues and if the employee is unable to receive the vaccination due to disabilities or religious beliefs, under federal laws, including the Americans with Disabilities Act or Title VII of the Civil Rights Act of 1964, before terminating employment, the employer must determine if the failure to be vaccinated poses a direct threat to others through potential exposure, and if so, if it can provide a reasonable accommodation to the employee. More often than not, so far in the Covid context, this has meant allowing the employee to work from home, but for most jobs on Broadway that is not a feasible or reasonable accommodation and is going to be a non-starter.
How Can Theaters Handle a Situation in Which an Employee Can’t Be Vaccinated Due to a Disability or Religious Beliefs?
Allowing an unvaccinated actor to perform on stage with others could create an “undue hardship” on the employer and risk exposure to others, which could negate the legal enforceability of imposing such a reasonable accommodation. However, if nearly everyone else working on the show has received the vaccine, the risk of exposure to others by one non-vaccinated employee may be so low as to warrant an exception. Such analysis will need to be balanced by an employer’s general requirement under the rules of the Occupational Safety and Health Administration to provide a workplace free from serious recognized hazards.
While we all welcome the return of Broadway, any vaccine mandates will come with challenges as the industry navigates re-mounting productions in the Covid era.