Bargaining for a Safe Return to the Symphonic Workplace

June 30, 2020

Rochelle Skolnick  -  AFM Symphonic Services Division Director

Some orchestral employers have started to plan various scenarios under which musicians might come back to work, e.g., through some combination of small ensembles, socially distanced audiences, and streaming of content. Some musicians are anxious to resume work, for reasons both economic and non-economic; others are justifiably concerned that in the absence of a safe, effective, and widely available vaccine for COVID-19 there can be no completely safe return to work. Tremendous uncertainties remain with regard to what may constitute effective safety protocols for symphony, opera, and ballet orchestras in the context of the COVID-19 pandemic.

There is insufficient rigorous scientific research into the mitigation of risk for musicians rehearsing and performing in traditional performance spaces. The patchwork of local, state, and federal guidance on “re-opening” further complicates the picture. We cannot afford to rush the process of returning to work; there are simply too many unknowns and the stakes are literally life or death. However, it is not too soon to begin thinking about the process by which AFM locals and orchestra committees can begin to bargain protections necessary to ensure to the greatest extent possible the safety of musicians when they do return to work. It is also the right moment to consider some of the over-arching principles of which we should be mindful as we embark on this process.

The employer is responsible for providing a safe workplace.

There can be no question that it is the employer’s responsibility to ensure that the workplace is safe. The employer controls the workplace. Symphonic employers either own or rent the buildings where rehearsals and performances take place. Employers direct not only the musicians’ work but also the work of the many other individuals who support our work, including operations and artistic staff, stage management and crew, and facilities maintenance staff. Notwithstanding their legal duty to ensure a safe workplace, employers are in the best position as a practical matter to manage those aspects of the workplace that protect the safety and well-being of everyone who works there. The COVID-19 pandemic only reinforces the importance of this duty.

A corollary to the employer’s duty to provide a safe workplace is that the employer is liable when an employee is injured in the course of work. No employer should ever ask a musician to waive the right to file a Workers’ Compensation claim or seek other redress against an employer if the musician is injured in the workplace, which includes contracting COVID-19. It is unlawful for an employer to present musicians with a liability waiver to sign, unless it has been bargained with the union—and under no circumstance should we agree to such a waiver. Presentation of such a waiver is tantamount to an admission by the employer that it cannot ensure a safe workplace.

Employee health and safety are mandatory subjects of bargaining.

In the collective bargaining context, working conditions like health and safety are among the subjects that must be bargained between an employer and the employees’ designated representatives, i.e., the local union and the orchestra committee. In the context of the pandemic, our symphonic employers must sit down and talk with us about how they intend to ensure the musicians’ safety in the workplace. Just as we have traditionally bargained about other health and safety issues like service lengths, hearing protections, and backstage lighting, we will now bargain about the timing of the return to work and the protections necessary to rehearse and perform safely during the pandemic.

Although the employer is responsible for the safety of the workplace, it may not unilaterally implement safety protocols without giving us notice and the opportunity to bargain over them. Nor may it bypass the local and orchestra committee, going directly to individual musicians to press them to agree to conditions that have not been properly bargained. To avoid this happening, locals and orchestra committees should be proactive, demanding bargaining over health and safety well before any return to work is scheduled. Advise your members to contact you if they are approached directly about conditions for a return to work.

We should also press our employers to share with us their plans for protecting the health of our audiences as they return to our concert halls. While these plans are not directly within the scope of our own working conditions, we have a vested interest in making sure missteps are not made that cause harm to those who support us and reflect badly on the institution as a whole.

Any plan for a return to work must comply with the directives of the relevant civil authorities.

It should be obvious, but musicians cannot be asked to return to work in defiance of stay-at-home or shelter-in-place orders. Musicians who live across municipal, county, state, or even national borders from their place of employment may face obstacles to travel and should not be asked or expected to violate orders in effect where they live in order to travel to the workplace. Likewise, limitations on the number of people who may gather in an enclosed space must be strictly adhered to and viewed as minimal safety precautions.

Any plan for a return to work must be based on the best available science.

Until we have universally available and accurate instantaneous testing or a vaccine to prevent infection, returning to work will involve some level of risk. A vaccine could take another year or more to develop under the best of circumstances. Unless we are willing and able to remain at home until then, we must mitigate, to the greatest extent possible, the risk involved in returning to work. Bargaining over risk mitigation will be some of the most important work we do in the coming weeks and months. The health and lives of our members will depend on it.

With every passing week we learn more about the transmission of COVID-19. However, there are still many unanswered questions, particularly with regard to the specific risks of playing musical instruments together with other musicians. European studies have attempted to measure aerosols and droplets emitted from wind and brass instruments in order to determine the spacing necessary to ensure safety. Recommendations vary from as little as two meters (about six-and-a-half feet) to as much as five meters (over 16 feet). However, a study published in late March by the Journal of the American Medical Association found that liquid droplets from sneezing, coughing, and simply exhaling can travel more than 26 feet and linger in the air for minutes. Wearing a face mask helps mitigate this spread but surgical and cloth masks have gaps through which airborne particles can travel and of course masks cannot be worn while playing wind and brass instruments.

Social distancing protocols in general application—like wearing masks and maintaining a distance of at least six feet from others—will certainly be necessary but not sufficient to protect symphonic musicians in the workplace. Without peer-reviewed studies on transmission of the disease in conditions that parallel those of the symphonic workplace, we can only attempt to extrapolate from what is known about transmission of the disease to develop measures to prevent its spread in our workplaces. As we navigate this challenge and work to develop with our employers the protocols that will keep our family of musicians safe, we must always err on the side of caution. Our lives and those of our colleagues depend on it.

Musicians must have the opportunity to ratify any bargained return to work conditions and individual musicians must be allowed to choose to remain safely at home without penalty of any kind.

As discussed above, we cannot fully eliminate the risk of contracting COVID-19 in the workplace until we have a safe and effective vaccine. Until then, we can only mitigate risk to the best of our ability. We will do our best to bargain the greatest protections possible and we will not ask musicians to ratify any plan that we do not believe ensures the greatest possible degree of safety. However, each individual musician’s circumstances and vulnerabilities are different, and each must be allowed to decide whether a return to work, even under the safest conditions possible, poses an unreasonable risk to that musician’s health or the health of a member of the musician’s household.

While some factors have been identified as placing individuals at higher risk of adverse outcomes from COVID-19, the reality is that this disease has ravaged even young and healthy individuals with no pre-existing conditions. Accordingly, neither the employer nor the local and orchestra committee are in a position to determine whether or not an individual musician is at high risk or to create an exclusive list of qualifying conditions that excuse a return to work. Only the individual musician can make that determination, and no one should be asked or expected to return to work if they reasonably believe doing so would put their health at risk or jeopardize the health of a member of their household. Nor should anyone who chooses not to return for these reasons be penalized in any way, including, but not limited to, loss of tenure, seniority, accrued sick leave or compensation.

Conclusion

Communication among the local, orchestra committee, and musicians of the orchestra will be critical in the weeks and months ahead, including regular email updates and frequent virtual meetings, which provide the opportunity to check in with each other and talk over any issues that have arisen. Additional guidance on the process of bargaining safety plans is available for all AFM members in the “COVID-19 Safety Planning” subfolder of the Coronavirus Resources section of the SSD Resource Center. This guidance will be updated as we learn more about best practices with regard to safety.

Locals may request the assistance of an SSD negotiator to bargain a safety plan or to advise on other bargaining issues related to the pandemic. Questions or requests for a negotiator assignment should be directed to me at rskolnick@afm.org or 314-756-3858.

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