July 29, 2021
After widespread debate in recent months regarding vaccination policies and the various ethical and legal considerations, we now seem to be at a tipping point.
With the news from the US last week that mandatory Covid vaccinations on US film and TV productions will be allowed on a restricted basis under a new agreement reached between the guilds and the major studios (which gives producers the option to implement mandatory vaccination policies for cast and crew in Zone A on a production-by-production basis), and the recent UK government announcement that those who are double jabbed will no longer have to isolate if they are a close contact from 16 August 2021, it seems almost inevitable that some UK productions will start to implement some form of vaccination policy in the coming weeks and months. It’s clear that it’s a pressing issue on the minds of Studios and UK production companies given recent instructions we’ve received.
At this stage, it appears that there are a variety of policies being considered in the UK. At one end of the spectrum is the mandatory vaccination policy, whereby cast and crew would be required to have had a vaccine to work on the production, perhaps limited to certain roles (such as those in Zone A as above). There are rumblings that a number of major players are already considering such a policy. Alternatively, a number of productions are considering something softer – namely a requirement for cast and crew to confirm their vaccine status with such information being utilised for H&S and production scheduling purposes. At the other end of the scale are the policies aimed at encouraging vaccine uptake via the provision of information and resources and permitting paid time off to take it.
Given some of the toxicity that emerged when such vaccination policies were mooted in the UK earlier this year, studios and production companies will clearly need to manage the rollout of these policies carefully. However, there is perhaps a sense that with almost 40 million now double jabbed in the UK, the public mood has shifted. Should industry show consensus in this area in the same manner it did in respect of the launch of Covid health and safety protocols, the backlash may well be limited.
From a legal perspective, there will be a number of issues to grapple with:
Perhaps most significantly, what will a production actually do if a cast or crew member refuses to have the vaccine or won’t reveal their vaccine history? If an individual is terminated or is not engaged because of that, then there will be a risk in some cases of indirectly discriminating against that individual should the reason for their stance be based on a legally protected characteristic.
There are a number of characteristics that could be relevant but arguably the most likely is religion and philosophical belief. While untested as of yet, there is at the very least a risk that ‘anti-vaxxers’ will be able to demonstrate that their views are sufficiently cogent, serious and worthy of respect in a democratic society (which is the legal test required under the UK Equality Act for a philosophical belief to receive protection). If that proves the case, productions will be required to demonstrate that such policies are objectively justified in order to defend a legal challenge – in other words, they will need to be applied reasonably and proportionately.
The other aspect relates to data protection considerations. Processing any data related to vaccinations will constitute the processing of special category personal data and therefore stricter data requirements will apply.
We will be watching this space closely and will be very interested to see how things develop in this area. If you’re mulling over this issue regarding your production, we’d of course love to talk to you.