Announced last week, the Biden Administration’s order on mandatory vaccinations as part of a comprehensive national strategy in response to the ongoing COVID-19 pandemic may bring new requirements for some film and television productions.
Current film and television industry-wide protocols for returning to work agreed upon jointly by SAG-AFTRA, the Directors Guild of America, the International Alliance of Theatrical Stage Employees (IATSE), the International Brotherhood of Teamsters and the Basic Crafts, and the Alliance of Motion Picture and Television Producers already call for social distancing, masking, sanitizing, and other safety steps. They also give producers the option to implement mandatory vaccination policies for casts and crew on a production-by-production basis. Depending on the number of employees involved in those productions, however the upcoming federal regulations may soon require such policies. Moreover, because the vaccination mandate will not be limited to employees of covered employers who work within certain Safe Way Forward zones, already swollen production budgets may soon need to expand again.
In response to the continuing spread of COVID-19 and variants, the Biden administration last week directed federal workplace safety officials to issue an emergency rule for private employers with 100 or more employees: Workers must be vaccinated or have a weekly negative test result before coming to work. The Occupational Safety and Health Administration (OSHA) will now implement the new policy by writing new federal regulations. Normally an administrative procedure that can take up to eight years, the rule making will be expedited with an “emergency temporary standard” that could impose new requirements affecting some productions in the coming weeks. Legal challenges could slow the process but probably only slightly in the face of pervasive COVID-19 cases and their effect on strained healthcare resources.
Because no new regulations implementing the large-employer vaccination mandate have been released as yet, significant questions about the implications of the mandate for film and television remain. Obviously, smaller productions are unlikely to face requirements beyond those in current return-to-work protocols. For production companies with casts and crews large enough that they may be impacted, we provide the following information and preparatory insight that we hope is useful.
Once issued, OSHA’s emergency rules will have immediate effect in the 29 states under the federal agency’s jurisdiction. State agencies in Alaska, Arizona, California, Hawaii, Iowa, Indiana, Kentucky, Maryland, Michigan, Minnesota, North Carolina, New Mexico, Nevada, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Virginia, Vermont, Washington, and Wyoming will have to adopt the standards or measures that are as effective within at most six months unless sooner required by OSHA. Thus, for productions of a scale that could bring them under the pending regulations, it would be advisable to begin developing or improving health and safety systems now to handle an increased workload. This is especially important because covered employers who fail to comply with the standards could face OSHA citations and penalties of up to $14,000 per violation. On a September 10 webinar, Department of Labor officials confirmed that the 100-employee threshold will be counted on a company-wide basis. But this guidance clarifies only whether a production company is likely to be subject to the mandate. It is also currently uncertain how threshold employee numbers would be determined as between a parent company that holds the necessary underlying rights to a project and a single (or special) purpose vehicle (SPV) created to insulate the parent, investors, or both from operational liability. The question of whether penalties would be imposed on a company-wide basis—or instead be potentially far greater if calculated on a per unvaccinated or untested employee basis—likewise remains to be answered.
Other important issues are also as yet unknown. For example, it is unclear whether a particular type of COVID-19 test (antigen, PCR, etc.) will be mandated, whether covered employers will be responsible for COVID-19 testing costs, and whether employers will be required to collect proof of employee vaccinations. The new standard likely will compel not only asking about vaccination status but collecting documentation proving it. Labor Department officials have confirmed that pending regulations will specify whether the employer must pay for COVID-19 testing. Given that the Fair Labor Standards Act (FLSA) generally requires employers to pay for time spent waiting for and receiving medical attention (including COVID-19 testing) at the employer’s direction or on its premises during regular working hours, it seems likely that the vaccine mandate will also do so.
Film and television production companies with large projects in pre-production should begin planning now for how they will implement the new mandate’s requirements. Policy decisions can be made and some action steps taken before the regulations are released. Among other things, producers should decide whether they will implement a mandatory vaccination policy or allow unvaccinated employees to be tested weekly (likely already routine for some employees under Safe Way Forward protocols). Producers mandating vaccination should develop a reasonable accommodation policy for processing requested religious and disability exemptions. They should also develop tracking systems for vaccination status and weekly test results.
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