”It’s a risk to the employee coming back, it’s a risk for the employer of being sued and it’s a risk to the insurance company,“ one lawyer tells TheWrap
Studios, networks and production companies are figuring out ways to bring cast and crew back onto film and TV sets safely, but ramping up production too early could pose a risk to everyone, as standard insurance policies won’t provide much protection for either companies or employees.
According to multiple experts in the employment law and liability field, studios and networks are required to uphold safe working environments for employees — but can’t necessarily be held liable if an employee falls ill, given that it’s extremely difficult to prove they contracted the virus at the workplace as opposed to someplace else.
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“It’s going to be difficult in a workplace scenario of an employee to say with admissible evidence that’s required in court that they contracted COVID-19 on their job unless they can show that they are social distancing in every other aspect,” Kent J. Schmidt, a partner at the international law firm Dorsey & Whitney who specializes in business litigation, told TheWrap.
For most productions, everyone from the cast to the crew to the producers are absorbing some risk returning to work in the midst of a pandemic.
“It’s a risk to the employee coming back; it’s a risk for the employer of being sued; and it’s a risk to the insurance company of having a claim that has to be litigated,” said Arthur Silbergeld, a partner at Thompson Corburn LLP who represents employers in litigation and labor relations matters. “The employer has the obligation to maintain a safe work space. If they took temperatures, sent people home who had any symptoms at all, it’s going to be difficult for the employer to be liable. If you start production and aren’t doing any safety measures, then that’s a different story.”
Also Read: Can Hollywood Get Insurance on New Film and TV Production Amid Pandemic?
However, producers like Jason Blum and Tyler Perry who have outlined plans to quarantine the entire cast and crew for the full shoot, including two weeks before and after, would be “a clear exception to the norm,” Schmidt said, and might assume more liability should someone test positive during production.
Blum is working on a plan to shoot a film on the Universal Studios backlot with a small cast and crew that would be quarantined together at a nearby hotel, a person with knowledge of the production told TheWrap. And last month, Perry outlined a plan to resume production on two sitcoms at his Atlanta studios by testing and quarantining the cast and crew on his massive lot, complete with housing, for the duration of the shoot.
“It would be easier to prove that an employee contracted the virus from the workplace under those circumstances because other potential exposures are eliminated,” Schmidt said. “But very few employers will be able to adopt this model.”
Ultimately, if a staffer makes a claim, producers, studios and network will be on the hook since insurance won’t cover the claims apart from the traditional employee health insurance that is offered by employers. Not even the “business interruption” clause that companies could usually utilize if, say, a water main breaks, where production is shut down for a week or two and production can’t continue as planned, would cover this claim. Because disease can go on for an undefined amount of time and is unpredictable, this clause wouldn’t protect an employer even when productions have to be shut down if a key cast or crew member becomes infected and needs to quarantine.
“It is highly unlikely that insurance of any kind, whether it’s business interruption insurance or general liability insurance, is going to cover any claim by any employee that they became infected at work, whether they are working in close proximity without any precautions or whether they are taking all the precautions,” Silbergeld said. “The issue of coverage is a nonstarter.”
Also Read: How Hollywood Benefits From $2 Trillion Stimulus Package
Moving forward, Silbergeld and Schmit said, insurance companies will be much more direct and exclude pandemic coverage in policies completely. While current policies are vague, production shutdowns or employee illnesses “would not likely be covered under existing contracts,” Silbergeld added, “as no one would have anticipated this level of disruption, but any party starting up could have a supplemental contract covering all or a portion of the costs.”
As a result, all parties are looking for new models to share the very new (and very real) risks of restarting production. Elsa Ramo, managing partner of Ramo Law, whose firm represents producers and content creators, said insurers are negotiating with studios and networks about how much of a potential claim they would cover, while also talking to the unions to determine how much liability cast and crew can waive and how much studios, networks and producers can take on themselves.
“Everyone has to walk into a production environment in the middle of a contagious virus without a vaccine with a certain level of risk,” she said. “What we’re trying to do on the production side is figure out how much liability is the production able to take on, and how much are we trying to have cast take on.”
A rep for SAG-AFTRA declined to comment; a rep for IATSE, the union representing below-the-line production workers, did not respond to a request for comment.
All the Hollywood Films Arriving on Demand Early Because of the Coronavirus
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Disney/Warner Bros./UniversalSince most U.S. movie theaters have shuttered in response to the coronavirus pandemic, studios are rushing out VOD home releases of movies that were only just in theaters.
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Universal Pictures"Trolls World Tour"
The sequel to the 2017 animated hit announced it would be available for digital download on April 10 -- the same day it was supposed to land in theaters. Now it's a VOD exclusive.
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Warner Bros.
"Birds of Prey"
The Margot Robbie spinoff of 2017's "Suicide Squad" debuted on demand on March 24. The film grossed $84 million since opening on Feb. 4.
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Universal Pictures
"The Hunt"
The Universal/Blumhouse horror film was first delayed from release last fall due to controversy over its violent content -- and then sidelined after its March 13 opening by the coronavirus. It's available to stream now.
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Universal Pictures
"The Invisible Man"
The Universal horror film starring Elisabeth Moss grossed nearly $65 million since its Feb. 26 release in theaters. It's available to stream now.
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Focus Features
"Emma."
Focus Features' adaptation of the Jane Austen novel opened in limited release Feb. 21 -- and picked up $10 million in ticket sales until the pandemic shut down theaters. It's available to stream now.
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Sony Pictures
"Bloodshot"
The Vin Diesel comic-book movie opened March 6 and grossed $10 million before theaters shut down. It's available on VOD now.
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Lionsgate
"I Still Believe"
Lionsgate's biopic starring K.J. Apa as Christian music star Jeremy Camp hit VOD on March 27 -- just two weeks after it opened in theaters.
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Warner Bros.
"The Way Back"
Warner Bros. released the Ben Affleck drama "The Way Back" -- which grossed $13 million in theaters since its March 6 opening -- on VOD less than three weeks later, on March 24.
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Disney/Pixar
"Onward"
Disney and Pixar’s animated feature was made available for purchase on Friday, March 20, and the film hit Disney+ on April 3.
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Paramount Pictures
"Sonic the Hedgehog"
Paramount Pictures' "Sonic the Hedgehog" set a new record for video game adaptations with a $58 million domestic opening weekend on Feb. 14 and has grossed $306 million worldwide theatrically. It's available on demand now.
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20th Century
"The Call of the Wild"
20th Century Studios' feel-good film starring Harrison Ford and a giant CGI dog is available on demand now.
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Fox Searchlight
"Downhill"
Barely escaping an avalanche during a family ski vacation, a married couple (Julia Louis-Dreyfus and Will Ferrell) is thrown into disarray as they are forced to reevaluate their lives and how they feel about each other. It's available on demand now.
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Focus Features
"Never Rarely Sometimes Always"
"Never Rarely Sometimes Always" is the story of two teenage cousins from rural Pennsylvania who journey to New York City to seek an abortion. The film premiered at the Sundance Film Festival and walked away with a Special Jury award. It's available for VOD now.
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Samuel Goldwyn Films
"Endings, Beginnings"
"Endings, Beginnings," a romantic drama from Drake Doremus starring Shailene Woodley, Sebastian Stan and Jamie Dornan, opened early on digital on April 17 and on demand on May 1. It was meant to open theatrically on May 1.
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Samuel Goldwyn Films
"To the Stars"
"To the Stars," a period drama set in 1960s Oklahoma that stars Kara Hayward, Liana Liberato, Jordana Spiro, Shea Whigham, Malin Akerman and Tony Hale, was bumped up to a digital release on April 24 and an on demand release on June 1. Martha Stephens directed the film that premiered at Sundance in 2019 and was meant to be released theatrically by Samuel Goldwyn Films.
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truTV
"Impractical Jokers: The Movie"
truTV's first-ever feature-length film arrived early on digital on April 1. Follow James "Murr" Murray, Brian "Q" Quinn, Joe Gatto, and Sal Vulvano, aka The Tenderloins, playing themselves in a fictional story of a humiliating high school mishap from the early '90s.
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Disney
"Artemis Fowl"
Disney's adaptation of the Eoin Colfer fantasy novel "Artemis Fowl" was meant to debut in theaters on May 29 but premiered exclusively on Disney+. The film is directed by Kenneth Branagh and stars Colin Farrell and Judi Dench.
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Oscilloscope
"The Infiltrators"
The theatrical release of Oscilloscope's docu-thriller "The Infiltrators" has been postponed, and the film was released on both Cable On Demand and Digital Platforms starting June 2.
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Brainstorm Media
"Working Man"
The March 27 theatrical release of "Working Man" has been canceled due to the theater closures, and the film premiered on May 5 via Video On Demand.
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Photo by Rob Carr/Getty Images
"Jump Shot: The Kenny Sailors Story"
"Jump Shot: The Kenny Sailors Story," a sports documentary executive produced by NBA star Steph Curry, was made available for streaming on the new service Altavod between April 16-18 for $7.99 and is available for pre-order beginning April 9. 10% of all the proceeds will be donated to COVID-19 relief efforts. The documentary tells the story of the player, Kenny Sailors, who pioneered the jump shot, and it features interviews with Curry, Kevin Durant, Dirk Nowitzki, Clark Kellogg, Bobby Knight and more.
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Warner Bros.
"Scoob!"
Warner Bros. announced on April 11 that it would release the family animated film “Scoob!” for digital ownership and premium video on-demand on May 15, making it the second film (after Universal's "Trolls World Tour") to cancel a planned theatrical release and head straight to home release pandemic.
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Universal Pictures
"The King of Staten Island"
"The King of Staten Island," the comedy starring and co-written by "SNL" star Pete Davidson and directed by Judd Apatow, skipped its theatrical release date of June 19 and opened one week early on VOD everywhere on June 12.
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Focus Features
"The High Note"
"The High Note," the latest film from "Late Night" director Nisha Ganatra that stars Tracee Ellis Ross and Dakota Johnson, made its premiere on VOD on May 29. It was meant to open on May 8 theatrically.
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Samuel Goldwyn Films
"Waiting for the Barbarians"
Ciro Guerra's film starring Mark Rylance, Johnny Depp and Robert Pattinson was originally slated for a theatrical release but was picked up by Samuel Goldwyn Films to instead be released via cable on demand and on digital in August
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Daniel McFadden / Focus Features
"Irresistible"
Jon Stewart's latest film, a political comedy called "Irresistible," will skip theaters and make its premiere online for on demand digital rental on June 26. The film from Focus Features stars Steve Carell and Rose Byrne and was meant to open in theaters on May 29.
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Amazon Studios
"My Spy"
The Dave Bautista action comedy "My Spy" was originally meant for a theatrical release from STXfilms and was due to hit theaters in March. Amazon then acquired the film from STX and will now release it on streaming on June 26.
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Disney
"The One and Only Ivan"
The animated Disney film based on Thea Sharrock's best-selling children's book "The One and Only Ivan" is the latest feature to skip theaters and move to Disney+. The movie features the voice talent of Angelina Jolie, Danny Devito, Sam Rockwell, Bryan Cranston and Helen Mirren. The film was previously slated for theatrical release on August 14 but will now debut on Disney+ one week later on Aug. 21.
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STXfilms
"The Secret Garden"
The re-imagining of the book "The Secret Garden" was meant to open in UK theaters in April but delayed its theatrical release until August. But STXfilms will now release the StudioCanal and Heyday Films movie on PVOD for $19.99 on August 7 in North America. "The Secret Garden" stars Colin Firth, Julie Walters and Dixie Egerickx.
”Irresistible“ joins a list of big films heading to digital home entertainment platforms early
Since most U.S. movie theaters have shuttered in response to the coronavirus pandemic, studios are rushing out VOD home releases of movies that were only just in theaters.
Beatrice Verhoeven
Film Editor, Twitter: @bverhoev