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.
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