Legal FAQs for Reopening Music Studios

T. Scott Gilligan
MTNA Legal Counsel

With states either implementing or considering the reopening of businesses during the COVID-19 pandemic, MTNA members have a number of questions regarding the legal ramifications of reopening music studios and teaching lessons to students. Below, MTNA has provided answers to several of the legal questions that it has received:

1.  Is there an obligation to go back to in-person lessons?
   No. Each music studio will have to determine what procedures it is comfortable with going forward. There is no requirement to continue in-person lessons if it presents a safety or medical issue. Of course, if students had prepaid for in-person lessons that are no longer being offered, the music studio would have to refund the amount for the lessons that will no longer be provided.


2.  What is my liability if I reopen my music studio and one or more of my students are diagnosed with COVID-19?
   This is unchartered territory for the legal system and lawyers. Since we have only been dealing with the COVID-19 pandemic for a few months, there are no concrete conclusions that can be drawn about potential liabilities for businesses that reopen.
   
   But, there are three major legal doctrines that would come into play in any lawsuit against a music studio owner who reopened his or her studio. The first would be the issue of causation. Considering that the incubation for COVID-19 is usually 5 to 7 days and that community spread of the virus is generally found in every city and town in the U.S., it will be nearly impossible for a student to be able to pinpoint that his or her exposure happened at the music studio. Absent some type of clear cut evidence, this would be problematic to pinpoint where any person was infected.
   
   Secondly, in order to establish liability, the student would have to prove that the music studio was negligent. If a studio opened up in violation of any applicable stay-at-home order, negligence would not be difficult to show. But, if the music studio operated in compliance with state and local restrictions and orders, and if it followed current CDC and state health regulations, negligence would be very difficult to prove.
   
   The third legal doctrine that would come into play is assumption of the risk. If a student sued a music studio for negligently exposing the student to COVID-19, the studio could defend by asserting that the student (or his or her parents) voluntarily and knowingly assumed the risk of exposure by allowing the student to come to the studio. Since everyone is well aware of the risks of COVID-19 infection, anyone who ventures out into a business environment is knowingly assuming the risk of exposure. Courts do not permit a plaintiff to recover for an injury or illness when the plaintiff was aware of the risk and voluntarily assumed it.
   
   While, as noted above, there have been no court decisions regarding the liability of businesses that reopen during the pandemic, the fear of legal liability should not prevent a music studio from reopening. Of course, owners of music studios should implement the safety and health practices mandated or recommended by the CDC and state and local health departments to protect clients and staff, and reduce the risk of legal liability.
   
   
3.  What steps can a music studio take to protect the safety of its staff and may the music studio bar persons from its facilities who do not follow safety requirements?
   There are numerous steps that music studios may employ to reduce the risk of COVID-19 exposure for students and parents coming to your studio. Below is a list of measures you can implement depending upon the exposure level in your community, your clientele, your studio setup, and your comfort level:
   
   • Pre-Opening Welcome Back Letter. Music studios should send a pre-reopening letter to all students and parents informing of a reopening date and all infection control procedures that the music studio will be implementing. Emphasize that the procedures are mandatory and must be complied with as a precondition to entering the music studio and/or receiving lessons.
   • Scheduling. Schedule lessons so that there is a gap between students to reduce the number of persons in the studio at any one time.
   • Waiting Room. A music studio may elect to eliminate its waiting room by having students remain in their cars until they are notified by cellphone or text that the teacher is ready to begin the lesson. If a waiting room is used, music studios should remove magazines, toys and other objects which may be difficult to disinfect.
   • Screening List. Music studios should instruct students not to come to the music studio if they have or have had in the past 14 days a cough, a fever, shortness of breath, difficulties breathing, flu-like symptoms, gastrointestinal upset, or experienced a loss of taste or smell. It may be beneficial to send to the student the day before his or her lesson a patient screening form which they would fill out indicating that they have had none of the above listed symptoms. To encourage students to be honest, the music studio may want to consider waiving any cancellation fees due to an illness.
   • Limit on Items. Music studios may want to restrict the items that students bring with them into the studio, such as limiting a student to a cellphone and wallet. It may be beneficial for students not to bring into the music studio books and other music instruction materials.
   • Hand Sanitizer. Music studios should place hand sanitizer stations at the entrance of the studio with specific instructions to use it prior to entering the studio and upon leaving the studio. Sanitizer stations could also be placed in instruction rooms.
   • Temperature. The music studio may want to take the temperature of students as they enter the music studio. Touchless forehead scanners are readily available online for less than $100. If an elevated temperature is noted, the students should be instructed not to enter the music studio and to proceed home.
   • Payment. Music studios may want to require payment by credit cards over the telephone to avoid touching credit cards, checks or cash.
   • Masks. State orders may require the use of facemasks by both the student and studio employees. In addition, even though the state may not require it, a music studio can certainly adopt the policy requiring facemasks to be worn by students and employees. If masks are required, the students should be advised of that beforehand in the written welcome back letter. The music studio may also want to obtain a supply of disposable masks for students who forget to wear one.
   • Sanitation. The music studio should establish a set schedule to sanitize all areas where persons have been during the time the music studio was opened. Obviously, those would include instruments, tables, chair arms, door knobs, light switches, hangers or anywhere else where people come in contact. Surfaces should be cleaned with detergent or soap and water prior to disinfecting them. To disinfect, use products that meet the EPA’s criteria to use against COVID-19.


4.  How should a music studio handle refunds for prepaid lessons that were cancelled and students who no longer wish to continue lessons although there is a contract with the music studio?
   This will be a road that each music studio will have to navigate depending upon the wording of its contracts, its existing cancellation policies, the level of COVID-19 infection that exists in its community and the possible public relations fallout if it is perceived as being too heavy handed in the treatment of its students during a pandemic. MTNA recommends that if a member is uncertain how to proceed, it should involve its attorney in deciding the proper way to handle cancellations, refunds and terminated contracts.
   
   Even if a music studio has a well-drafted contract that requires a student to pay for all cancelled lessons, in some cases the student may be able to escape liability under the doctrine of impossibility of performance. If a party to a contract is not able to perform because of an event beyond the party’s reasonable control, it can avoid liability under the contract. So, even if students are required to pay for all or some portion of cancelled lessons, if they can show that it was impossible or illegal to attend the lessons because of the pandemic or government orders, they may be relieved of having to pay any cancellation fee under the contract.


5.  If the music studio has employees, could the employees sue the music studio owner if the employees are diagnosed with COVID-19?
   Like the answer to Question 1 above, there would again be an issue of causation. Given the community spread of the coronavirus, it would be very difficult for an employee to prove that he or she caught the virus at the music studio.
   
   In addition, employees cannot sue employers because they become sick or injured on the job unless they can show that the employer intentionally put the employee at risk or recklessly disregarded their safety. Instead, the government provides worker’s compensation for employees who get sick or injured because of their employment. Workers compensation provides immunity against employee lawsuits alleging carelessness or negligence on the part of the employer that results in injury or illness to the employee.


6.  Where can I find the CDC recommendations?
   The CDC has issued guidelines to businesses that are considering reopening their operations. Those guidelines can be found at www.cdc.gov/coronavirus/2019-ncov/community/reopen-guidance.html. Also, specific CDC suggestions and recommendations regarding cleaning and disinfecting businesses can be found at www.cdc.gov/coronavirus/2019-ncov/community/pdf/reopening_america_guidance.pdf.
   
   Nearly every state will also have orders and/or guidelines regarding reopening. In many states, there are restrictions on the number of persons that can be in the business facility, spacing requirements, mandates on the wearing of face masks, and other measures that a business must take. Please review all such orders and guidance carefully to ensure compliance prior to reopening the music studio.

For questions, contact MTNA at mtnanet@mtna.org or (888) 512-5278.

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