The continuing Covid spread, fueled by the delta and more recent omicron Covid variants, compelled the White House in early September 2021 to announce a vaccine mandate plan aimed to large employers. Implementation has since stalled as a US appellate court grapples with numerous legal challenges, and the question of the mandate’s constitutionality is almost certainly headed to the Supreme Court. But the show must go on, and its producers need to know how a vaccination mandate—if put into place–will affect the sets and sound stages where thousands of their motion picture and television industry employees practice their art and craft daily.
If the mandate is not struck down, it will be implemented through an Emergency Temporary Standard (“ETS”) issued by the Occupational Safety and Health Administration (“OSHA’). As applicable to private employers like motion picture production companies and studios with 100 or more employees, the mandate originally set a starting date of January 4, 2022. It directed employers to ensure by that date that all employees were fully vaccinated or to require that any unvaccinated cast or crew produce a negative test result on at least a weekly basis to be permitted to continue employment. This means that if the mandate becomes federal law, film industry employers that meet the employee threshold will need to require proof of full vaccination status or weekly negative Covid tests as a condition of continued employment.
Subject employers would still need to consider exception requests from employees with disabilities, medical conditions, or sincerely held religious beliefs, observances, or practices that in each case preclude them from being vaccinated. As part of such consideration, producers would need to evaluate requested exceptions under “undue burden” tests and accommodate them if feasible. With respect to talent, as well as crews working in close quarters behind the camera, accommodating such requests could certainly prove unduly burdensome. Under the return-to-work protocols agreed upon by producers and industry guilds, however, testing on the same or a more frequent basis than that required by the mandate has become the norm on production locations and studio backlots. Vaccination has not been uniformly required.
OSHA has not released regulations specifying how the 100-employee count will be computed. With the mandate currently on pause, the agency will likely wait. But production employers should assume that all U.S. employees will count regardless of whether they are local crews, front office staff, name talent, background extras, or post-production personnel (other than independent contractors).
Production employers should also anticipate that some form of a vaccine mandate will likely survive legal challenges given increasing medical concerns about the ability of new Covid variants to evade vaccine immunity. They should begin creating vaccination policies and considering how they will handle exceptions.
Industry guidelines are set up for vaccination mandates and frequent testing
Even so, the industry’s comprehensive framework has already enabled large-scale productions to resume with relatively few Covid incidents. As announced by the Biden administration, a vaccination requirement mandated by federal law would function essentially as a “reboot’ of guidelines agreed upon this past summer by the Directors Guild of America (“DGA’), International Alliance of Theatrical Stage Employees (“IATSE’), International Brotherhood of Teamsters (“IBT’), Basic Crafts, Screen Actors Guild-American Federation of Television and Radio Artists (“SAG-AFTRA”), and Alliance of Motion Pictures and Television Producers (“AMPTP’). Under those modifications to the industry Covid-19 Safety Agreement, signatory producers may implement mandatory vaccination policies for casts and crew in Zone A on a production-by-production basis. A Deadline report described the major aspects of the agreed workplace safety guidelines as follows:
Production must announce such policies as soon as possible, preferably in initial breakdowns or earliest casting discussions. Such policies must apply equally to all cast and crew working in the relevant zone(s) or work location(s). Production must have procedures in place to engage in interactive process with those requesting ADA (“Americans with Disabilities Act”) or religious accommodations and must include the procedure for initiating a request in notices of the vaccination policy. In addition, such policies can be enforced only when vaccines have been readily available to performers for a sufficient period of time to confer immunity in time for the start of work. If being vaccinated as a condition of employment for the production, any vaccination costs must be absorbed by the employer, and vaccination time is work time. The employer must also maintain vaccination records securely and available only to those with a need to know.
Industry guidelines thus already anticipate what are likely the key points of any federal vaccination mandate that becomes law. Producers have been preparing to work under such conditions now for close to six months. If mandates do become laws and vaccination or weekly negative tests become employment requirements, they should be well prepared to implement the additional steps, if any.
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