Topic: General Legal
Time Investment: 7 Minutes
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What if I am an unvaccinated photographer?
Do I have to declare my vaccination status to clients?
You may have heard about a recent news story featuring a photographer who brought their allegedly unvaccinated toddler to a newborn shoot. It sparked conversations and arguments both within the photography community and among parents and those on both sides of the vaccination debate and for unvaccinated photographers who were left with questions.
If you are an unvaccinated photographer or if you cannot be vaccinated for whatever reason, you may wonder what responsibilities you might have to disclose that information to clients, or even, as has been discussed in TheLawTog facebook group, whether you can ask your clients about their vaccination status.
What the CDC says…
The Centers for Disease Control and Prevention (CDC) says that working in certain jobs increases your exposure to some vaccine-preventable diseases, in particular if you are working with vulnerable populations. In the US, neither the federal and or any of the 50 states don’t require adult citizens to be vaccinated. However, the National Immunization Program (CDC) recommends certain vaccinations for adults. Countries like Australia don’t necessarily legally require vaccination but do strongly encourage specific vaccinations for specific occupations. For those working with children, for example, the Queensland State Government health department recommends: Influenza, Measles, Mumps, Rubella, Whooping cough, and varicella.
While the law may not require adults to get vaccinated, their employers may require vaccination as a condition of employment. Of course, many photographers own their own business and are able to make policies for themselves.
What if an unvaccinated photographer knowingly exposes a newborn?
The question is if a photographer who is not vaccinated knowingly exposes a newborn (who can’t benefit from vaccines outside the herd immunity offered by those who are vaccinated) or a pregnant mother (fetuses are at especially high risk), are they liable if any harm is done as a result of an illness contracted from that unvaccinated photographer?
It is an unsettled legal issue. Some states, including New York, allow for refusal of vaccinations, and this means that a legal argument can be made that this protects an unvaccinated person from liability should someone contract an illness as a result of exposure through an unvaccinated person (of course this would include an unvaccinated photographer).
In order to limit this possible liability, if you work with vulnerable populations including newborns, immunosuppressed individuals, pregnant women, or the elderly, you could consider consulting your attorney about including a waiver in relation to your unvaccinated status in your contract so that your provide notice to those parties and obtain informed consent to continue despite potential risks.
Alternatively, you could choose not to disclose your vaccination status if you are an unvaccinated photographer, and hope that no vulnerable client contracts any illness as a result of exposure to you, and that they have no way of discovering your unvaccinated status.
Should photographers be vaccinated?
The question of what a photographer can and should do if they cannot be vaccinated or are themselves immunosuppressed and at risk if they are exposed to clients who may be unvaccinated is also complex. While a photographer could clearly indicate that they cannot take clients who are unvaccinated on the grounds that it would be a risk to their health, the law does not require those clients to disclose their status with you. In this situation, speak with your attorney about possibly including a clause in your contract that indicates acceptance of liability on the part of the client if they are unvaccinated and you, as an immune suppressed individual, are exposed to, and contract, an illness as a consequence of your contact with them.
What the recent story about a photographer bringing an allegedly unvaccinated toddler to a shoot with a days old newborn is likely to prompt is more clients asking questions about the vaccination status of the photographer.
The CDC states that anyone who is around newborns should be up-to-date on all routine vaccines, including the whooping cough vaccine and the flu vaccine during flu season. This is because of the scientific research that holds that herd immunity protects babies from disease, and that people who take care of and interact with the babies help form that herd.
The law is unclear about whether you would be held liable for any harm or injury that results from being unvaccinated, however general principles would suggest that if you knowingly place a vulnerable individual in a situation and they are harmed, and this can be shown to be the case, you are likely to be held liable for such injury or illness. Moreover, it is unlikely that general liability insurance will pay out if it can be shown that your actions were reckless or intentional, rather than merely negligent. Including a waiver that shows a client (including a parent or guardian) consented to having an unvaccinated individual touch or photograph them or their child may go some way to mitigating the risk of your insurer refusing to defend a lawsuit on your behalf on the grounds that you were reckless or negligent. For specific wording that addresses your specific circumstances you should speak with an attorney who in familiar with the photography industry (especially if you do work with vulnerable populations).
Inform and Decide
Sometimes decisions about whether to inform or disclose something that may influence whether a client chooses to work with you are not just about what is legal or not. This is complex decision, and this article is not entering the debate about whether photographers should be vaccinated for moral, ethical, or professional reasons. We are trying to shed light on what is legally required of photographers who are working with vulnerable groups including newborns, immune-suppressed individuals, pregnant women, and the elderly – in terms of whether photographers who are unvaccinated are legally required to disclose that status to clients.