Foreword

We believe local, independent nightlife is vital to the health and survival of arts and culture. Small venues all over the world are incubating new talent, exciting trends, and remarkable ideas. Still, others are honoring history and maintaining cultural traditions. Some are even doing both.

The Guide is for these venues.

Early in the Covid-19 pandemic, we realized that independent venues were at a significant disadvantage for surviving a shutdown and not only because of limited ability to pay existing costs without any incoming revenue. The cost of hiring consultants to advise on what steps to take to make their venues safer and advocate for reopening in their localities would be too much for many independent venues to bear. It was from this need that our original guide was born in the Spring of 2020. The original guide was an open source operational document specifically tailored for independent venues.

Now we all have moved into a new reality with new needs. But even as our Guide has shifted to specific needs for venues in New York State, it remains an excellent resource for venues across the country and globally.
New York State has some of the most restrictive reopening procedures in the United States, and the recent guidelines for small to medium-sized venues in New York State are very comprehensive but very dense. Through our work with The State, our operational expertise, and our servicing of local operators in partnership with NYIVA (New York Independent Venue Association) as chair of their reopening committee, we've identified the most frequently asked questions about New York State INTERIM GUIDANCE FOR SMALL AND MEDIUM SCALE PERFORMING ARTS & ENTERTAINMENT guidance. 

Here, we have distilled those questions and learnings into this top-level summary of the guidance's most salient elements. Be advised that this summary does not contain all of the NYS operational regulations but does expand upon the most critical and possibly confusing elements. The entire 30-page state-issued guidance may be found here. 

Wash your hands. Wear a mask. Clean high-touch surfaces frequently. 

Every venue, state, and country, of course, is different. If you are looking for operational support/advice for your venue, region or municipality specifically, feel free to reach out to us at [email protected] to arrange a consultation. ​

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Capacity

​​As of April 2nd 2021 Venues in new york state are permitted to operate in the following capacity model:
IF YOU ARE NOT TESTING OR CHECKING VACCINE STATUS AT THE DOOR: 
  • INDOOR: 100 attendees or 33%* of the maximum seated capacity for a seated venue or 33% of the maximum occupancy for a GA venue as set by the certificate of occupancy, This number does not include staff or performers.
  • OUTDOOR: 200 attendees or 33%* of the maximum seated capacity for a seated venue or  33% of the maximum occupancy for a GA venue as set by the certificate of occupancy, This number does not include staff or performers. 
IF YOU ARE CHECKING VACCINE/NEGATIVE TEST STATUS AT THE DOOR: 
  • You must complete and submit to your local DOH an EVENT DETAILS plan for each event you plan to operate in this model. 
  • INDOOR: 150 attendees or 33%* of the maximum seated capacity for a seated venue or  33% of the maximum occupancy for a GA venue as set by the certificate of occupancy, This number does not include staff or performers. 
  • OUTDOOR: 500 attendees or 33%* of the maximum seated capacity for a seated venue or 33% of the maximum occupancy for a GA venue as set by the certificate of occupancy, This number does not include staff or performers. 
*whichever number is lower ie: for a 1,000 cap venue 33% is 330 but you may only seat 100 indoor/200 outdoor.
More Top line rules: 
  • Everybody must wear masks unless eating or drinking.​
  • All distancing is “fixed” meaning people must stay in a single location, no free flow of people or dancefloors permitted. 
  • The current curfew for consumption is midnight. However, venues are permitted to operate in their standard model of operation after midnight so long as no further consumption is taking place (ie: you can have a band up at 1am so long as consumption of food and drink stopped at midnight).
    • ​As of May 17th provisional curfews on outdoor activity will be lifted. Operations may return to 4am curfew.
    • As of May 31st provisional curfews on indoor activity will be lifted. Operations may return to 4am curfew.

Arrivals & Ingress

  • Reservations/tickets as opposed to walk up business are encouraged, preferably with staggered arrival times communicated at time of purchase
  • If you choose to operate in a model where you check the vaccine or test status 
    • Negative PCR tests within the last 72 hours 
    • Negative “Rapid Tests”/ Antigen tests within the last 6 hours
    • Proof can be provided on paper or by using Excelsior Pass 
  • Doors open earlier than normal to allow early arrivals and seating

  • Must wait in area with sufficient space for social distancing, preferably outdoors.
  • Clear ingress signage + waiting areas. 
  • Temperature check / contact screening (to include test status if you’re operating in that model).
  • You are prohibited from permitting a person who as declined or failed the screening process from entering your venue.​
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Click the item above to view specific resources we recommend to accomplish the above

Tables & Seating

  • Seated groups of no more than 10 with dividers and/or 6 feet apart
  • Table service only
  • Masks may be removed when seated eating/drinking
  • It is possible to create “pods” around tables/seats that may permit patrons to stand up within their designated areas. In these situations a minimum of 6 feet (preferably more) and/or suitable barriers to prevent contact between groups is needed. The area being allocated to a group must be clearly marked with a physical barrier (double rope and stanchion, bike rack, mojo etc).
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For solo attendees dividers may be installed.
Theater Seating:
  • Capacity reduced by blocking off rows and aisle-adjacent seats as needed
  • Empty seats to be maintained between household groups
  • Arrows to indicate one-way walking flow
Vertical Divider

Performer Management

  • Limit green room access and catering.
  • All catering in single-serve and pre-wrapped packaging. No platters of food for performers or tours. 
  • Require crews to stay masked at all times. 
  • Allow performers to unmask only when performing. 
  • Non-emotive performers should always be masked.
  • Artist transport vehicles must be regularly cleaned and high-touch areas (e.g., door handles, arm rests, buckles, seats, windows, screens) disinfected prior to use and between any change in driver(s) and/or occupant(s). In such vehicles, hand sanitizing supplies and/or wipes should be provided for use by driver(s) and occupant(s).​
  • Non-masked artists need to be 12 ft from audience members or behind a suitable barrier.
  • Physical distancing between artists on stage where practicable and/or barriers.
  • DJ booths for talent only.
  • Physical distancing and/or separate green and dressing rooms.
  • No craft services.
  • Sealed liquids.
Artists are subject to the same screening measures as staff and patrons. 
  • Negative PCR in the last 72 hours 
  • Negative antigen in the last 6 hours
  • Proof of vaccine

Staff

  • The safety of your staff is paramount. You likely already mandate handwashing and general venue cleanliness. However, in advance of reopening, the entire staff should be retrained on post-COVID cleaning practices, proper guest interaction, proper handwashing (20 seconds, soap and hot water, disposable towels, in-between fingers, etc). 
  • Training of some nature is currently mandatory and all team members should be asked to sign an acknowledgement that they’ve completed this training. 
  • Staff must keep 6 feet of distance between one another wherever possible. This means rethinking staff rooms and discouraging staff gathering/clustering.
  • Staff should be asked to complete a health declaration. This may include vaccine/negative test status.
    Please note employers are currently required to provide time off to acquire a vaccine. 
  • With a touchless handheld or infrared thermometer, prepare to check staff temperature at reopening meetings and at the beginning of every subsequent shift. 
  • For non vaccinated persons travel 14 days before returning to work should be discouraged. Socialize this to your staff well enough in advance of return to operations.  
  • Be prepared with resources in your area for staff – ie, testing sites, vaccine locations and hospital/doctors that may provide specialized care. Socialize this information to your staff before opening and continue to share these resources as the situation in your region evolves. 
  • All staff interacting with members of the public or with performers must wear face coverings and/or face shields.
  • Doing a mock service with all workers to get used to the changes in uniform, protocols, and venue layout will prove extremely helpful once you reopen.

Dismissal/Egress

You may want to consider timed departures to manage orderly, socially distanced egress
Table Seating
  • Guests are to remain seated until departure time.
  • Numbered table departures announced over PA system.
  • Signage on tables indicates exiting instructions.
  • Room cleared and cleaned between shows.
Theater Seating
  • Guests are to remain seated until departure time.
  • Ushers walk aisles to indicate when row is ready to be released for exit.
  • Signage on seat backs indicates exiting instructions.
  • Room cleared and cleaned between shows.

Inspections


Inspectors will be looking for the following: 
  • Didactic and informative signage.
  • Distancing signage and/or floor markers.
  • A record/proof of the food you’ve served with first drinks. 
  • Employee health tracker.
  • Cleaning log.
  • Cleaning protocols of the venue with a focus on high touch areas that are observable by both patrons and inspectors. An overview of appropriate cleaning procedures may be found in the WHO guidelines, here and CDC guidelines, here.
  • An abundance of venue-supplied hand sanitizer. 
  • Compliance with capacity, fixed distancing, mask mandates enforced for patrons and staff.
  • Compliance with your standard SLA Method of Operation.

FAQs

Can employers require that employees get a vaccine?
Probably. The consensus among Labor Lawyers is that while the government cannot require United States citizens to get vaccinated, that employers, who run private businesses may require employees/workers to get a vaccine, based on the right to dismiss employees under the “at-will” employment doctrine. This action by private employers is, of course, subject to medical or religious accommodations as required.
That guidance goes along with the recent guidelines from the United States Equal Employment Opportunity Commission, which suggest that employers can generally mandate vaccinations without outright saying so.
The California Department of Fair Employment and Housing (DFEH) also recently said that the Fair Employment and Housing Act (FEHA) generally allows employers to mandate vaccines that have been approved by the FDA.
According to Aaron Olsen, a San Diego employment law attorney at Haeggquist & Eck, employers that do mandate vaccinations under the emergency-use authorization are required to inform workers about the potential vaccination side effects, as well as the consequences of refusing to be vaccinated.
The industries that are mandating vaccinations the most are agriculture, restaurants, construction and healthcare. Nightlife would be a natural industry to mandate vaccinations based on its close interaction with the public.
There are at least two federal lawsuits have already been filed on the issue. An employee who recently filed a lawsuit challenging an employer's vaccine mandate argued that the EUA states that people must have "the option to accept or refuse administration of the [vaccine]" and be informed "of the consequence, if any, of refusing administration of the [vaccine] and of the alternatives to the [vaccine] that are available and of their benefits and risks. 

There also may be claims coming for wrongful termination in violation of public policy and possibly claims under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.
The New York State Department of Labor (“NYSDOL”) has issued guidance on the State’s recently enacted COVID-19 vaccine leave law, which went into effect on March 12, 2021. As we previously reported, the law requires employers to provide employees with “a sufficient period of time, not to exceed four hours” per dose to be vaccinated for COVID-19. Leave must be paid at the employee’s regular rate of pay and cannot be charged against other leave accruals. The NYSDOL’s guidance suggests that the State of New York believes that employers have the right to require employees get vaccinated.
Obviously, we are in a place where many factors about how the law will play out are unknown. Employers should seek guidance and advice from a Labor Lawyer, before putting any policy in place.

source:  Adelman Matz P.C.
​Can a business require a guest to be vaccinated or have a recent negative covid test to permit entry into their establishment?
Probably. Guests have no constitutional free speech rights in a private business. The First Amendment to the U.S. Constitution protects an individual’s right to free speech from infringement by the U.S. Government, but that right does not extend to a private business. Similarly, state constitutions do not create such rights as well. Thus, a music venue or a restaurant probably is able to legally deny service to individuals that are not vaccinated or do not have a recent negative covid test. This also has not been tested in the courts and may change. As businesses also know, Title III of the Americans with Disabilities Act requires music venues and restaurants to provide certain accommodations to persons with disabilities. The music venue or restaurant must think about the reasonable accommodation it has available. Never request medical documentation for a requested accommodation. However, there is a balancing test and the business need not provide an accommodation that puts other patrons or the employees in a potential unsafe position, and allowing an unvaccinated and/or non negative covid test patron into the business may cause a health or safety issue. 
This is only guidance, so when evaluating your opening plans, seeking the advice and counsel of a knowledgeable lawyer with both labor law and restaurant/venue experience will help you open safely and legally.
source:  Adelman Matz P.C. ​​

Helpful Documents

Open-Source Documents: 

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We believe local, independent nightlife is vital to the health and survival of arts and culture. Small venues all over the world are incubating new talent, exciting trends, and remarkable ideas. Still, others are honoring history and maintaining cultural traditions. Some are even doing both.

The Guide is for these venues.

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