Adelman On Venues 1

WITH STEVEN A. ADELMAN

MANDATES, FACTS AND OBJECTIONS

In this issue of Adelman on Venues, we are back to all COVID, all the time. This is not to say that the rest of the event world is tranquil – it’s not. 1 Just that for the moment, this most shiny object really does deserve our full attention.

The Biden Vaccine Mandate Will Not Directly Affect Most Event Professionals

On September 9, 2021, President Biden announced new vaccination and testing requirements for federal employees and contractors and also for certain private employers. Since I am not a fan of getting one’s news filtered through social media or Cardi B’s cousin’s non-existent friend in Trinidad and Tobago, I have linked the actual text of the announcement, with its explanations, here.

Relevant to event professionals, there is a simple takeaway: the mandate doesn’t much affect us.

Private employers with more than 100 employees will have to ensure that all employees are vaccinated or tested weekly. The key is “employers.” Most of us are engaged as independent contractors, not hired as employees. The venues and event spaces where we hold events do have many employees, so the mandate will affect them. But not yet.

This is because statements by a government Executive, whether the President or a state governor, are not self-enforcing. Rather, the rules must be written by members of whatever administrative body enforces rules on that subject. In this instance, the good folks at OSHA, the Occupational Safety and Health Administration, are busy writing federal regulations to create enforceable proof of vaccination and testing guidance for employers. That takes time. Then there is generally a 60-90 day period after the new regulation issues before it takes effect and enforcement begins. You can imagine the enforcement apparatus that has to be invented and staffed, which makes event planning seem like child’s play. For private employers, it is likely that nothing will change regarding their duty to enforce new COVID-related requirements before early 2022. Of course, now is a fine time for them to get ready.

Anyone who is already complaining about burdensome federal regulations should just chill out until something actually happens. For people more focused on working, they should probably ensure their vaccination status is up to date, because a growing list of employers is taking matters into their own hands and requiring their workers – whether employees or independent contractors – to be vaccinated. 2

A Few Facts About Vaccines as of Today

In any conversation about COVID-19, time and location matter. Our knowledge about the virus, vaccines, variants, and our culture change all the time, and willingness to accept or resist science is amazingly regional. (I’m amazed, anyway.) Before the world changes too much more, here are a few facts about which I’m confident today.

The Pfizer-BioNTech, Moderna, and Johnson & Johnson COVID-19 vaccines are all highly effective at reducing the likelihood a vaccinated person will become infected by SARS-CoV-2 (the virus that causes COVID-19). They also reduce the likelihood of serious illness due to a breakthrough infection and the risk of transmitting coronavirus to others. They are free, widely available everywhere, and have extremely rare side effects. Here is a brief review of the science, with much more available from the Centers for Disease Control and Prevention (CDC) and the World Health Organization (WHO), among other reputable sources.

Vaccination is unquestionably the way out of this pandemic. In the United States, the latest research shows that unvaccinated people are 11 times more likely to die from COVID-19 than those who are fully vaccinated. Vaccinated people are nearly five times less likely to get infected and 10 times less likely to get so sick they end up in the hospital. Although there remains a risk of “breakthrough infection” among fully vaccinated people, the risk is very small. Data from Utah, Virginia, and King County, Washington show that about 1 in 5,000 vaccinated people test positive for COVID each day. That figure is worse in low-vaccination areas, and better – closer to 1 in 10,000 – in high vaccination areas like Seattle. The risk of a breakthrough infection is equivalent to risks people accept every day, like riding in a vehicle.

Two outdoor events last month underscore the difference vaccination makes. The 2021 Lollapalooza festival in Chicago attracted about 385,000 people over four days. The organizers required proof of vaccination or a negative COVID test. The local health department estimated that at least 88% of attendees were vaccinated. Two weeks later, just 203 infections and no hospitalizations had been reported, with the highest rate of infection among unvaccinated guests. Just a week after Lollapalooza, about 700,000 people attended the Sturgis motorcycle rally in South Dakota with no pandemic-related measures at all. In the ensuing three weeks, daily coronavirus cases in the state increased 685%. The infections in South Dakota were both more numerous and more serious, with more than 200 people hospitalized and at least 40 people kept alive only with the help of ventilators.

Because this is the science as I, a lawyer who reads a lot about COVID, understand, I tend to offer my view in strong declarative statements such as that EVERYONE SHOULD GET VACCINATED, AND PEOPLE WHO DON’T ARE EITHER DUMB OR SELFISH OR BOTH. Things like that.

Let’s pull back the curtain for a moment. I do this because I believe it, and also for effect. When I speak this way in webinars or in print, it’s because my goal is to show a clear path that anyone can follow. But like a plan for any event, we know we will deviate from our well-considered decisions as soon as other people and circumstances are involved. Plans are not handcuffs. Rather, they help us set our sights on some north star of our own.

I think the best way to achieve a healthy and safe event is to require everyone to submit proof of vaccination. But I live in the real world (well, in Arizona) where that is not always possible or legal. So, when you read my emphatic statements, understand that I am doing what planners always do – I’m setting a goal to remind me where I want to wind up, knowing there are few straight and narrow paths to anything worthwhile. To paraphrase far too many t-shirts, ‘Just get there.’

COMMON OBJECTIONS TO VACCINATION, WITH RESPONSES

As a public service, I am providing (less excited versions of) responses that I have given to people objecting to health and safety rules I’ve written for clients over the last few months. Feel free to adapt the language to suit your circumstances. This is offered primarily to make you feel confident in your answers, however you say them.

One further thought is that the more information you can convey before potentially belligerent guests or workers reach your doors, the more confrontations you will avoid. It’s good to be right, but less good if you get punched in the nose for it.

HIPAA

Objection: I don’t have to present proof of vaccination status because the privacy of medical records is protected by HIPAA.

Response: It is perfectly legal to require proof of vaccination status as a condition of participation in events. This is because the “Privacy Rule” of the Health Insurance Portability and Accounting Act of 1996 (“HIPAA”) applies only to health care providers for the purpose of medical care. Therefore, it does not infringe on any privacy right for venue and event professionals to demand proof of vaccination status.

Let’s say this one more emphatically: HIPAA HAS NOTHING TO DO WITH EVENTS.

MEDICAL EXEMPTION

Objection: I am medically exempt from getting vaccinated against COVID-19.

Response: This is less of a bright line, more a question how much you want to trust, but verify. Here’s what you need to know. There are few legitimate bases for a medical exemption from vaccination. I suggest that any request for such exemption should be accompanied by a doctor’s note. CDC has issued guidance regarding vaccine allergies that makes it clear that allergic reactions will be rare, primarily to polyethylene glycol (“PEG”), which is a compound commonly used in household products such as skin care, cosmetics, and baby wipes, as well as each of the vaccines available in the United States. Likewise, testing has shown that pregnant women may safely get vaccinated and should therefore comply with vaccine requirements. Any children who are not eligible to be vaccinated should obviously be exempt, and they should be required to wear face coverings.

RELIGIOUS EXEMPTION

Objection: I am entitled to a religious exemption from any vaccination requirement.

Response: Title VII of the 1964 Civil Rights Act requires American employers of more than 15 employees to accommodate employees’ religious beliefs, among other things. Like President Biden’s vaccine mandate, the Act does not apply to independent contractors or event guests at all. For employees covered by its provisions, they are entitled to accommodations only for “sincerely held religious beliefs.” There is, however, no basis in any major Judeo-Christian religion to refuse vaccination: Pope Francis supports vaccination as “an act of love;” evangelical leader Franklin Graham concluded that Jesus would have supported vaccination; Christian Science allows vaccination against COVID-19 in the name of public health.

I have read that there are self-proclaimed “religious leaders” who are printing exemption letters for anyone who wants one. Event professionals will have to decide on a case-by- case basis how much they want to fight with someone who goes to this much trouble to avoid a life-saving vaccine.

STATE OR LOCAL LAW

Objection: The Governor signed an Executive Order, or my state legislature passed a law precluding anyone from asking about vaccination status.

Response: The only circumstance in which an organizer may not require proof of full vaccination is where state or local law precludes it from making vaccination a condition of participation. Be aware that many of these state rules are currently subject to legal challenge, enforcement of some laws or executive orders has been temporarily enjoined, and new federal mandates are making vaccination a condition of employment for many workers, so organizers should check the legal situation carefully where the event will be held. There are many more COVID-related topics to cover. In the next week or so, I anticipate that the Event Safety Alliance will release new health and safety guidelines for professionals bold enough to contemplate in-person events. Until then, this should be enough to get you started.

If you have questions, email me at sadelman@adelmanlawgroup.com. I like hearing from you.

Steven A. Adelman is head of Adelman Law Group, PLLC in Scottsdale, Arizona, and Vice President of the Event Safety Alliance. His practice focuses on risk and safety at live events throughout North America, he provides health and safety consulting for event producers, and he serves as an expert witness in crowd-related lawsuits. He is principal author of the authoritative Crowd Management standard, ANSI ES1.9-2020, as well as three prior rounds of reopening guidance for the event industry.

1. In the last week, three people tragically died falling from an upper level of Petco Park in San Diego and a haunted mine shaft ride at an amusement park in Colorado. We focus exclusively on COVID at our own risk.

2. On a personal note, I am envious that Equinox, a high-end fitness company, is on this list. The gym to which I belong in Arizona, EoS Fitness, has a stupid sign at the front desk that begins, “We support our Members’ right to exercise their choice of wearing or not wearing a mask in the gym, based on vaccination status and comfortability level.” [Emphasis and made-up word in original.] I wrote a negative Google review that should have generated a response from management. Crickets. Thus, I call them out again to you, dear readers. To quote my Grandma Mary, of blessed memory, “Don’t let them s—t on your head, open your mouth.”

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