Update Concerning Meetings and Related Issues in Light of COVID Variants and the Anime Convention
Date: December 13, 2021
[Note: Given continued uncertainty about the future of the pandemic, our general cautions and advice about COVID meeting issues remain the same as our earlier reports: Legal Issues for Meetings: Lessons Learned and Planning Ahead (ASAE Associations Now April 2021); and Shore Up Your Meeting Contracts in Uncertain Times (ASAE Associations Now September/October 2017).]
If you have resumed in-person meetings, big or small, what are the mandatory state and local requirements that must be followed and what additional safety rules would you like to adopt (if allowed)? Are you including assumption of risk and liability waiver provisions in your registration materials? Do you require attendees to commit to a meeting code of conduct which includes compliance with COVID safety rules? Will you be enforcing whatever safety rules you adopt and announce to your attendees? What are your notification responsibilities if one of your attendees informs you that they tested positive for COVID after returning home?
The most important thing for any in-person meeting is the safety of attendees. From a legal perspective, what can be done to minimize potential claims and liability if someone tests positive after returning home from your meeting? Apart from legal liability, your reputation with your members and the general public may be enhanced or damaged depending upon whether your meeting was held safely without incident or was a super spreader event.
As your meeting date approaches, it will be important to determine what minimum vaccination, testing, masking, social distancing and other safety rules have been established by your meeting venue as well as local, state and federal guidelines. It also will be important to consider the expectations of your attendees, who may desire increased protections if allowed in that jurisdiction. Whatever they may be, your final safety rules should be committed to writing, formally announced, and made a condition of attendance. Many groups incorporate them into a formal meeting code of conduct.
In addition to keeping everyone as safe as possible, making attendees review and agree in advance to abide by your safety rules, acknowledging the risks of attending, and waiving potential liability can help set expectations and minimize claims. This can be in your meeting registration materials, which can also address whether a refund will be provided if someone refuses to follow the meeting or venue’s safety procedures. There should be similar requirements for exhibitors, vendors and guests.
Having all of this in writing will help protect you legally if your rules are followed. However, it also can form the basis for liability if you don’t enforce your rules, since it can be argued that you breached the safety promises you made to attendees by announcing the rules in the first place. For example, there were anecdotal reports that the Anime convention was overcrowded, understaffed, vaccine cards and test verifications were not being checked carefully, and masking requirements were not being fully enforced. This certainly does not read well in the press and will not be helpful if a claim is made. For most meetings, photos and videos will provide graphic evidence of what actually transpired including during sessions, receptions, meals, and informal gatherings.
After your meeting is over, no news is good news when it comes to COVID. Unfortunately, however, you may receive a report from one or more of your attendees that they tested positive upon their return home. As always, your first consideration will be the health and safety of the reporting individual as well as the other attendees at your meeting. Certain actions may also be helpful or required to minimize your legal exposure.
The first step is information gathering:
- When did the attendee test positive in relation to your meeting dates and what were the likely other sources for infection (such as at home before or after your meeting, while traveling, or engaging in other activities at the meeting destination)?
- What was the size and where was the location of your meeting?
- What was the level of infection in that community at the time of the meeting?
- What were your meeting rules as discussed above and were they enforced by you and followed by the infected person?
- What kind of acknowledgement and waiver, if any, did the individual and others sign in advance?
Needless to say, your action plan will be different if you are talking about a small versus a large meeting and if held at an isolated resort location or in a big city. Your meeting venue and local health officials may have suggestions or requirements for you to follow in terms of notices and follow up. You should check these out prior to the event and be prepared to follow them if required or advisable. As in the case of the Anime convention, health officials may require full notification to all attendees, exhibitors, speakers and staff and a suggestion for universal testing if the positive test is for Omicron or some other new variant of concern. Again, these authorities should be consulted whatever the outcome of the reported positive test.
In almost all cases, it will be important to advise the reporting attendee to immediately contact any individuals with whom they were in direct contact during the meeting. In some cases, the individual may self-report on social media out of consideration to other attendees. If not, and rumor gets out that someone tested positive, you should not give out the individual’s name without permission. If the infected attendee is not willing to contact others, you might need to perform contact tracing in order to notify those you know who came in close contact with the infected attendee that they might have been exposed to Covid. If the infected attendee is not willing to contact others – or if they cannot recall who they came in contact with - this is all the more reason for a general notice to everyone who was at the event.
For a small meeting in a distant location, it might be appropriate to provide a general notice to all attendees. Even for meetings in large cities and venues, notice to all attendees is desirable as a courtesy to your attendees. Although some city health authorities recently indicated that notice was not required for large meetings in a big city, the rationale was that COVID was widespread, contact tracing was impossible, and everyone understood the risk of attending and would watch for symptoms. Such guidance may be different depending upon the spread of Omicron or a future variant. It is always best to check with the local health authority in the city where the event was held to seek appropriate guidance.
Finally, it is important to remember that both CDC vaccination cards and PCR test results include confidential information about individuals. If you collected copies of meeting attendees’ CDC vaccination cards or negative PCR test results, these should be destroyed once you have noted whether meeting attendees were vaccinated or presented a negative test result. Such information should not be collected or checked if your meeting was in a state, county or city that prohibited requiring meeting attendees to be vaccinated, masked, or present negative PCR tests. If you have done so and your organization received a notice of a fine for mandating such protections, you should consult legal counsel as to your options for responding to the fine or other violation notice.
In conclusion, the continued spread of the Delta variant and emergence of the Omicron variant poses increased challenges for groups holding in-person meeting to keep attendees safe, minimize legal risks of claims and liability, and follow up with appropriate notices after checking with local health authorities if any attendee reports a positive COVID test after returning home.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.