Studios and Major Unions Reach Industry-Wide COVID-19 Return-To-Work Labor Agreement

Studios and Major Unions Reach Industry-Wide COVID-19 Return-To-Work Labor Agreement READ LESS

As motion picture and television production has been returning on an individual production basis during the COVID-19 era, the Alliance of Motion Picture and Television Producers (AMPTP) and the major industry unions/guilds (SAG-AFTRA, DGA, IATSE, and Basic Crafts/Teamsters) have now finalized their Return-to-Work Agreement (Agreement). In addition to prescribing the COVID-19 testing, screening and safety protocols that are intended to provide a safe and healthy working environment, the Agreement establishes many special employee payment conditions related to testing, screening and training requirements. EP has carefully reviewed the Agreement and has implemented the required special compensation provisions. The Agreement became effective on September 21, 2020 and expires on April 30, 2021.

We summarize below the key aspects of the Agreement while emphasizing the special employee payment provisions.

1. SPECIAL PAY-RELATED CONDITIONS

A. Testing

• Talent and crew must be tested before the first day of work to ensure they are not actively infected with COVID-19.
• Talent and crew (other than background actors) who travel outside their home to undergo testing on a day in which the employee does not work will receive a $250 stipend (not subject to pension/health contributions). Background actors will receive a $100 stipend (sometimes subject to pension/health contributions). The stipends also cover payment for time spent completing COVID-19 training required by the producer of up to one hour and for completing start paperwork on a day that the employee does not work.
• A $20 stipend applies to testing performed at home.
• Talent and crew will undergo regular testing during their work on the production. The level of testing will depend on many factors. Special testing rules apply to air travel. No stipend payment is due for testing if the employee is otherwise paid for the day (including payment of a travel allowance to a performer or payment of a travel day to crew).
• Lab-based PCR tests - currently considered to be the gold standard of COVID-19 testing accuracy - are to be used and, in limited circumstances, rapid result PCR tests (not to be confused with rapid antigen tests) are also allowed. Antigen and antibody tests are not acceptable.
• In jurisdictions where testing is limited or processing delays exist, the producer and unions/guilds may discuss appropriate modifications to testing requirements. The parties may also discuss testing adjustments in areas with low or high rates of infection.
• Employees may be asked to sign consent forms in connection with testing and the sharing of testing results. Producers must comply with applicable laws regarding consent forms and disclosure issues. Consent forms cannot include waivers of the producer’s liability.

B. Health Screening

• Employees may be required to complete a health assessment survey and self-temperature check prior to reporting to work on workdays. Employees who conduct a health survey or temperature check before reporting to work on workdays will receive payment of 0.1 hours on each such day. However, employees who are “on call”, employed under the DGA Basic Agreement or FLTTA, series contract performers, Schedule F performers, or Schedule K-III “flat deal” stunt coordinators are not entitled to it. Such payment does not impact start time, meal and rest periods or overtime.
• Any time an employee spends undergoing health screening after reporting to work is considered work time.
• For temperature checks at the entrance to the worksite, no health screening payment is due.

C. COVID-19 Sick Leave

• If an employee experiences a specified COVID-19-related paid sick leave qualifying event, then the employee will receive a maximum of 10 days of COVID-19-related paid sick leave (certain exceptions apply), and such payments are capped at $750 per day (and $7,500 in the aggregate) per person and are subject to pension and health contributions.
• Reinstatement to one’s job after conclusion of an absence from work after taking COVID-19-related sick leave generally is conditioned on (a) whether the position still exists or the role has not been re-cast, and (b) the employee satisfies any producer eligibility requirements if the absence was due to the employee’s own COVID-19 status or the COVID-19 status of someone in the employee’s household or with whom he/she came into close contact; on episodic pictures, employee may need to wait until after the current episode is complete.

D. Pre-Employment Quarantine

• If an employee is ordered to quarantine, but for a reason unrelated to a COVID-19-qualifying event (when (1) at the direction of the producer prior to first work date, or (2) where a local government mandates visitors from outside of jurisdiction to quarantine), and the employee does not work during such quarantine period, then the employee will be entitled to payment for each day of quarantine (certain exceptions apply). Such payments vary depending on the contract and the situation and are subject to pension and health contributions.

E. Training

• A new COVID-19 safety training program will be created jointly by and administered through the Contract Services Administration Trust Fund, the IATSE Training Trust Fund, the Directors Guild-Producer Training Plan, and the NY Assistant Directors Training Program. Once created, the training is a condition of employment. Additional rules pertaining to this training, including when employees must complete it, are not yet finalized.
• Employees will be paid a stipend of $20 per hour to take the training (certain exceptions apply). It is expected that the training funds will handle this payment.
• If the person is otherwise paid for the day, no training stipend is required.

2. SAFETY/OPERATIONAL CONSIDERATIONS

A. Zone Testing

• Productions must adopt a "Zone" system (Zones A through D) to minimize contact and interactions between performers and background actors and crew who cannot wear PPE while performing their duties, on the one hand, and the rest of the crew, on the other hand. Zone placement determines the level of testing, PPE use, and physical distancing that may be required during the workday. Please refer to the Return-to-Work Agreement for more detailed rules on lab-based PCR testing versus rapid result PCR testing within the different zones.
• Zone A employees generally consist of performers and background actors working on set and all employees who are present in a workspace with a performer or background actor who is not wearing PPE. Zone A employees who work five or more days in a week are subject to more frequent testing (at least three times per week). Additional testing may be required under certain conditions. If a Zone A employee works fewer than five days per week, the employee need only be tested within 72 hours before each workday.
• Zone B employees consist of those who work on a “hot set” (i.e., a set staged for imminent filming) but who are not present in a workspace with a performer or background actor while not wearing PPE. Zone B employees must be tested at least once per week if using lab-based PCR testing.
• Zone C employees consist mainly of employees who can, at all times: wear PPE, work with other employees who are also wearing PPE, and maintain proper physical distancing. They are required to be tested at least once every two weeks. “Pool testing” is permissible for Zone C employees. Zone C employees cannot go to a “hot set” or where Zone A and B employees work, unless additional testing is performed.
• Zone D employees generally consist of workers who do not work within the production environment. They must be tested at least once before their first day of employment and may be subject to additional testing under certain conditions.

B. COVID-19 Compliance Supervisor

• Each production will designate a COVID-19 compliance supervisor responsible for safety compliance and enforcement. The compliance supervisor will be accessible to talent and crew during production hours and will be present on the set from call to wrap, except in very limited circumstances. The compliance supervisor need not be a union member.
• The production may assign additional individuals – who may be non-union, contracted from a 3rd party, or union members – to assist the compliance supervisor in carrying out COVID-19 safety duties subject to certain conditions.

C. Contact Tracing

• The Agreement provides for contact tracing measures, which may include use of a “punch card” system to record employees’ location throughout the day or by means of an electronic device. Producers may require employees to sign documentation consenting to the use of electronic devices. Producers should review applicable privacy and wage hour laws before implementing contact tracing measures.

D. General Terms & Conditions

• For producers who utilize digitized in lieu of paper documents, employees must accept e-delivery of and provide e-signatures for: (1) start paperwork; (2) time cards; (3) deal memos; (4) background actor vouchers; (5) fitting vouchers; (6) audition sign-in sheets; and (7) SAG-AFTRA Exhibit Gs. For employees without access to a device or technology permitting the receipt of electronic documents, the producer must provide the employee with hard copy documents or make other arrangements for the employee to receive and sign electronic documents.
• The Agreement requires the producer to (1) provide the union/guild with a copy of its COVID-19 policies and procedures; and (2) reimburse employees for pre-approved purchases to enable working from home where applicable.
• The Agreement incorporates many of the operational considerations relating to sanitation, infection control, PPE and physical distancing from the Industry-Wide Labor-Management Safety Committee Task Force White Paper. See Exhibit A and Appendix A to the Agreement.
• The producers and unions/guilds will reconvene 30 days after the Agreement takes effect and then again once every two months to discuss potential modifications to the Agreement.
• The producers and the unions/guilds may modify these procedures on a production-by-production basis to address changing conditions and information.
• Disputes arising under the Agreement are subject to the grievance and arbitration procedures in the applicable collective bargaining agreement(s).

*   *   *   *   *

For any questions about this Alert, you may contact:

Joe Scudiero, Senior Vice President & Chief Labor Counsel | jscudiero@ep.com

Alan Wu, Director, Employment & Labor Relations Counsel | awu@ep.com

Bob Pucher, Vice President, Labor Relations | rpucher@ep.com

Scott Bishop, Vice President, Employment Law | sbishop@ep.com