Disclaimer: This article does not constitute legal advice, and choruses should seek the opinion of a legal professional about specific guidelines for their area and situation.
According to guidelines released by the Equal Employment Opportunity Commission (EEOC) in December 2020, private employers (such as choruses) are indeed allowed to require that employees be vaccinated before returning to on-site work. Some exceptions apply, of course, including disability and religious accommodations. These exceptions are addressed in further detail in Section K of the guidance referenced above.
Charles Berardesco, Chorus America board member and retired general counsel most recently of the North American Electric Reliability Corporation, elaborates that “under some laws, the size of the organization can be a differentiating factor –– so, if the organization is under a certain number of employees, a particular law may not apply.” Location is also important. “There are both federal and state/local laws that apply to organizations. Even if an organization does not fall under a particular federal law, the organization should still determine whether the law where it operates has a different standard,” Berardesco says.
An additional consideration regarding staff is the nature of a person’s employment. Washington DC law firm Wiley Rein LLP advises that employers may require vaccinations for independent contractors or contractors that have not yet been engaged as long as “they include appropriate language in the contract that creates and governs the relationship.” If an existing relationship or contract is involved, that arrangement might need to be revisited.
Berardesco also offers a caveat: “The determination of whether someone is an employee or a contractor is one that can be subject to challenge.” He cites the current issues in California regarding Uber/Lyft drivers as an example of where lines are sometimes blurred and says he would advise organizations to “be careful about simply assuming that because the organization has determined someone is a contractor, that such determination will ultimately stand up to a challenge.”
Because volunteers are not employees, the matter of requiring volunteer singers to be vaccinated as a condition to returning to on-site rehearsals and performances will largely be a matter of what Berardesco calls “singer relationship” issues. “I don’t think any volunteer has a right in the law to be able to sing with a specific chorus.” This, of course, is true for individuals volunteering with choruses in other ways as well.
As for how a chorus might collect proof of vaccination, no standard guidance has yet emerged. “There is no applicable federal approach, and states/localities are all over the place,” says Berardesco, who suspects that over time a more consistent approach will develop. “I also suspect most organizations will simply use some type of written declaration by a singer as to their vaccination status.”
Berardesco highlights another related concern for singers and volunteers: the matter of a legal release. “A lot of choruses are struggling with the question of releases –– should singers be required to release the chorus from liability if someone has the virus and shows up to a rehearsal or performance.” As noted in this article from the Society of Human Resource Managers website, many attorneys question how enforceable waivers and releases will prove to be in actual practice.
Choruses and other arts organizations and venues may require audiences to show proof of vaccination. However, writes lawyer Ethan Krasnoo, a former actor who specializes in entertainment and employment law, if they do so, these requirements “must be enforced in a nondiscriminatory manner.”
Choruses may have logistical challenges here as well. First, many choruses perform in venues where they do not establish the rules and regulations. Even if they could, enforcement seems a significant hurdle. Berardesco struggles to think “how one would enforce that requirement –– are organizations really going to try and obtain evidence of vaccination? Are they going to require ticket holders to make some written affirmation?”
With apparent inconsistency in systems of record keeping––Does everyone receive a vaccination card when they get their shot? What happens if they lose it?––it remains uncertain how practical it will be to require some physical proof of vaccination, especially from patrons. As the time of live performance draws nearer, we may see more consistent and systematic approaches emerge.
There are many more questions that choruses will need to consider as they decide what approach is best for their organization. When developing policies, Berardesco urges choral organizations to “make it applicable across the board –– do not pick and choose between employees or singers on an individual basis.” Understanding the legal guidelines around requiring vaccinations is an important first step.