Collective quarantines, staggering crew work hours, daily temperature checks, regularly disinfecting props and costumes should be considered, write a trio of employment lawyers.
As communities begin to "flatten the curve" amid the novel coronavirus pandemic, employers have started the difficult task of planning to resume operations. But getting workers back on the job presents a host of unique challenges for employers in the entertainment industry, particularly in on-location production environments.
Strategies well-suited for offices, factories or retail may be ill-suited for film production, where people often work closely together for extended periods of time, and where remote work is often impracticable, if not impossible. Nonetheless, to avoid a prolonged shutdown, Hollywood employers will want to start formulating plans to resume production with an industry-specific approach. That may include:
Staggering Shifts for On-Set Workers
One of the principal strategies many employers in other industries are considering involves staggering employees’ shifts and work hours to minimize the number of people in the workplace at any one time. Of course, in production, it is often inevitable that many employees need to be in the same workspace concurrently; thus, staggering schedules likely isn’t a workable solution.
Instead, production employers should evaluate other approaches to limit the number of individuals on set at a given time. One suggested solution might involve borrowing from standard nudity rider provisions in performer agreements. These clauses restrict attendance during the filming of sensitive scenes to “essential” personnel — sometimes even delineating a specific set of individuals who are allowed to be present. This list of essential personnel might provide a good starting point for developing new post-shutdown staffing models for filming. As part of developing a list of key filming personnel, employers also should consider limiting the number of production assistants, artist representatives and executives on set to reduce the overall headcount.
Employers also will need to limit opportunities for people to congregate on and around the set. This may require restructuring on-set craft services and transitioning to a food delivery model. It may also require dispersing additional costume, hair and makeup areas around the studio or location to minimize the number of people in close quarters at any one time.
Going Digital and Paperless
Although it is obviously impossible to film remotely, several aspects of production could be transitioned to remote work — with or without the use of video conferencing software. For example, employers may consider whether writers rooms could temporarily be transitioned to video conferencing platforms (e.g., Zoom, WebEx, etc.) to preserve the collaborative aspect without the risks of close physical contact. Many employers have already taken this approach.
Like writing, the editing process may lend itself to increased remote work. To the extent collaboration is required for a director’s or executive producer’s cut, for example, video conferencing software would enable collaboration without having additional bodies in editing rooms.
While other aspects of production may require some physical attendance, video conferencing software could be utilized to reduce overall headcount without jeopardizing the creative process.
For example, production companies might consider having certain table read participants or attendees appear via video conference and limit in-person attendance to truly essential personnel. Likewise, although some later-stage casting functions may require in-person meetings, casting professionals could make increased use of video conferencing and taped submissions. Other non-filming aspects of production may be able to employ similar strategies to avoid the need for larger, in-person meetings.
To the extent possible, documents (e.g., call sheets, production reports, contracts, etc.) should be disseminated in digital formats. If documents have to be signed, employers should consider using electronic signature software (e.g., DocuSign) in lieu of obtaining hard copy signatures to limit shared use of writing implements.
Maintaining Sanitary Working Environments
In addition to adhering to standards of the federal Occupational Safety and Health Administration (OSHA) and any state-level counterpart (e.g., the California Division of Occupational Safety and Health), employers should develop comprehensive plans to ensure workplaces and equipment are properly cleaned on a regular basis. Employers should assemble teams of individuals responsible for developing and implementing cleaning plans and follow the U.S. Centers for Disease Control and Prevention’s (CDC) detailed instructions on routine and post-exposure cleaning of work environments. Employers should ensure that they are using an Environmental Protection Agency-approved disinfectant and pay special attention to so-called “high-touch surfaces” — which may be different from those found in other (e.g., office) work environments — including camera, sound and lighting equipment; props and set pieces; and hair and makeup tools and fixtures.
Production employers should pay special attention to soft surfaces, like costumes, which will need to be laundered more carefully and regularly. Further, performers should be provided with their own makeup brushes and sponges to avoid any cross-contamination.
Whenever possible, employees should maintain a 6-foot distance from others on set and should avoid congregating in bathrooms, trailers and elsewhere. Based on current CDC and local public health guidance, all individuals on set should wear face coverings to the extent possible. While performers obviously cannot wear face coverings while filming, they should don face coverings when the cameras stop rolling.
Employers should ensure that there are hand washing stations available and encourage all employees on set to regularly wash their hands. In addition, employers should also provide hand sanitizer for when hand washing is impracticable.
Another key component to maintaining health on set will be effective training. Thus, production employers should consider conducting virtual trainings before the first day of filming to educate cast and crew about infection prevention and control practices. In addition, employers should consider conducting quick on-set “refreshers” to remind cast and crew about best practices on a regular basis.
Detecting and Isolating to Avoid an Outbreak
For some productions, particularly where filming on location is required, employers might consider implementing collective quarantines before filming begins. For example, a production might have the entire crew travel to a location and remain isolated for two weeks to limit the risk of exposure to infection during filming. Whether or not employers follow this approach, during filming, key personnel and performers should be encouraged to shelter in place as much as possible when not working and avoid nonessential travel and social interactions.
Both the federal Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH) have determined that employers may ask employees whether they are experiencing symptoms known to be associated with COVID-19 infection and that they may take employees’ temperatures.
Based on this guidance, production employers should consider regularly (even daily) taking temperatures and asking all on-set personnel whether they are experiencing any symptoms. If employees indicate symptoms or have a fever, employers should quickly isolate such employees pursuant to CDC and local public health official guidance. To avoid issues on set, production companies should consider incorporating these limited pandemic-related health inquiries into performers’ and other artists’ contracts, and condition attendance on set based on compliance.
Anthony J. Oncidi heads Proskauer’s West Coast Labor & Employment Law Group and Kate S. Gold is a partner in that group in Proskauer’s Los Angeles office. Philippe A. Lebel is an associate in Proskauer's Labor & Employment Law Group. Their practice focuses on representing employers and management, including many clients in the media and entertainment industries.
