Hollywood Reopening Developments: LA Health Department and Industry Guilds Weigh In

California state and local officials, along with the unions representing the vast majority of cast and crew in the entertainment industry, are forging ahead with plans to reopen the industry, developing guidelines and procedures in an attempt to mitigate COVID-19 risks when production resumes.

Both the state of California and Los Angeles County have cleared the way for productions to begin again. Following the publication of an Industry White Paper by Hollywood's labor unions and the Alliance of Motion Picture and Television Producers, Governor Gavin Newsom announced on June 5, 2020 that film and television productions can resume as early as June 12, 2020 in California—subject to approval from county public health authorities and safety protocols agreed by labor and management.

On June 11, 2020, the Los Angeles County Department of Health published safety protocols for music, television, and film production. Just one day later, on June 12, 2020, the industry guilds and unions (in collaboration with infectious disease epidemiologists and other experts) issued their own guidance.

The key focus of the Los Angeles County Department of Health's Reopening Protocol is on the establishment of workplace policies with measures to ensure health monitoring, physical distancing, and proper sanitization. The multi-union report titled "The Safe Way Forward" addresses the same topics, but with special emphasis on testing and protection of performers.

We have summarized some of the key provisions of both guidelines below.

LA Health Department Reopening Protocol for Music, Television, and Film Production

Effective as of June 12, 2020, the Reopening Protocol presents a checklist of mandatory requirements which are in many ways stricter than the recommendations in the Industry White Paper.

All applicable measures on the guidance must be implemented, and producers must be prepared to explain why any measure not implemented is not applicable. For permission to film, a production must meet all requirements under the "On Location Filming" and "Scene Restrictions" sections of the checklist.

Among other directives, the Los Angeles County safety protocol requires:

• Compliance with relevant law: Follow additional protocols of industries relevant to areas of music, television, and film production (e.g., restaurants and bars, retail operations, office spaces, etc.).
• Appointment of a COVID-19 compliance officer: Designate a COVID-19 compliance officer, and if feasible, consult experts with experience in infection control to develop infection control protocols.
• Increased work-from-home opportunities: Reconfigure work processes to create opportunities to work from home. Vulnerable staff (those over 65 years old) must be assigned work that can be done from home whenever possible.
• Face masks: Cloth face coverings are required, unless production activity does not allow for the wearing of a mask. Employers must provide employees with a cloth face covering, which must always be worn (except while alone in a private office or a walled cubicle) and washed daily.
• Testing, symptom checks, and temperature checks: Engage in regular, periodic testing of cast and crew unless not feasible (e.g., one-time productions with short timing schedules or smaller music recording sessions). Daily symptom checks at the workplace are required, and temperature checks should be done if feasible.
• Response plan for positive cases of COVID-19: Have an established plan for response in the event of an employee who is sick or tests positive (for both symptomatic and asymptomatic individuals). Sick employees must observe mandatory quarantine requirements, even if the employee tests negative. If three or more cases of COVID-19 occur within the workplace within a span of 14 days, it must be reported to the County of Los Angeles Department of Public Health for investigation of the outbreak.
• Physical distancing: A written protocol must be in place to ensure physical distancing of six feet or more between people throughout the production. Designate areas for eating and drinking and stagger break and meal times.
• Infection control: To the maximum extent possible, increase ventilation in all spaces. Sets, production spaces, and the entire facility must be cleaned daily, and frequently touched areas and objects should be cleaned more frequently. All cast and crew should stay on location during the workday, including breaks.
• Communication and signage: Post signage throughout the facility/set to convey information on important safety protocols.
• Protections for cast:
  
  • Where feasible, cast should bring their own props (e.g., cell phone) and costumes;
  • If talent cannot wear a face covering, must strive for a minimum of eight feet of social distancing during rehearsal and performance;
  • Scenes with direct prolonged contact between cast (e.g. intimate scenes, fight scenes) are discouraged and scenes with large crowds should be avoided;
  • Hands-on assistance with wardrobe, hair and makeup should be limited only to cast who require it and cannot do it themselves;
  • During applicable of makeup, the actor should stay as silent as possible to avoid spreading of droplets;
  • Only essential cast and crew to be on or near the set, and physical distancing must be maintained; and
  • For music production, talent should arrive with hair and makeup done.
• Location: Location scouting should be performed virtually where possible. Locations should be remote, fenced, or otherwise well-secured from public access.
• Written COVID-19 safety protocol: A workflow and COVID-19 safety protocol must be written before filming occurs.
• Work hours: All on-location filming must adhere to operating hours between 7am and 10pm whenever feasible.

Hollywood Guilds and Unions: "The Safe Way Forward"

This 37-page joint report by the DGA, SAG-AFTRA, IATSE, and Teamsters was prepared in close consultation with infectious disease epidemiologists and builds on the Industry White Paper. The central theme in this report is "comprehensive, mandatory testing," and setting up a tightly controlled production environment with a "zone system."

The following are some of the highlights from the report:

• Zoning: Implement system of zones on set to control the exposure of those on set based on (1) proximity to cast, (2) level of testing, and (3) the extent to which physical distancing and use of PPE is feasible in the performance of work.
  
  • Zone A is any area where physical distancing or use of personal protective equipment is not feasible (e.g., performers working on set with crew). Zone A can be as small or as large as necessary but should only encase closely vetted individuals.
  • Zone B is any area of production that is not Zone A (e.g., production office, base camp, control room/truck, etc.).
  • Zone C is the outside world—wherever people employed on the production go when they are not working (e.g., homes, hotels, etc.). Please see the full report for a detailed step-by-step virtual tour of the Zone System.
• Testing: Frequent and regular testing is the "cornerstone of a safe return to production in a pre-vaccine landscape", and frequency is determined by the "zone" in which an employee works.
  
  • Every member of the cast and crew should be tested before their first day of work.
  • Zone A personnel should be tested three times a week at a minimum, with increased frequency depending on the circumstances (e.g., performers and crew involved in production of scenes requiring close or intimate contact).
  • Zone B personnel should be tested at least once a week and cannot be permitted to enter Zone A unless tested and cleared 24 hours prior.
  • If traveling by plane, cast and crew members must be tested and cleared within 24 hours of the flight and need to be tested and cleared again before entering Zone A or Zone B for the first time.
  • Performers (especially those involved in intimate scenes, fight/stunt scenes or scenes involving extreme exertion (e.g., dancing)) should be tested most frequently. On-set rapid testing one to 12 hours prior to such scenes is suggested.
• Other recommendations:
  
  • The company must provide the PPE: N95 masks, goggles, and face shields are considered the best available standard, and surgical masks (while not ideal) are better than wearing no mask.
  • All employees should maintain up-to-date immunization status: Including for influenza, pneumococcal, and pertussis to reduce possibility of misdiagnosis.
  • Temperature monitoring: While temperature monitoring is supported, it should be noted that the results are neither sensitive nor specific and may lead to a false sense of security.
  • Health safety team: Each production should have a healthy safety team comprised of (1) a Health Safety Supervisor (who understands epidemiology and will have final authority on COVID matters, including the authority to pause production in the event of a threat to the health of case and crew), (2) a Health Safety Manager (who understands production), (3) a Hygiene Crew (to sanitize all production spaces and vehicles) and (4) a Security Unit (to ensure the closed set environment).
  • Shorter workdays: Workdays should be as short as possible (preference is 10 hours) to allow time for monitoring, cleaning and safety protocols. Excessive workdays should be avoided.
  • Sick pay: Cast or crew members who cannot work due to a positive test or quarantine requirements should continue to be paid. These payments may be covered by federal, state, and/or local laws.
  • Performers are the most vulnerable due to their unavoidable proximity to others: Contact with performers who cannot wear PPE must be kept to the shortest time possible. Hair, makeup and costume departments should have one member of their department cover the set while the remainder of their crews wait at the cast base camp.

The report expressly states that these protocols are not static and are intended to be improved as production resumes, and recognizes that it will need to be further supplemented with protocols relating to protection of performers and others working without PPE and/or physical distancing.

Although the guilds and unions issued the report, specific protocols that are the result of negotiation and agreement between the producers and the unions are still pending.

Continuing Developments

As the virus is only months old, there are still many unanswered questions. It is likely that as health and safety experts gain more knowledge about COVID-19 and circumstances surrounding the pandemic continue to evolve, precautions and policies will change as well.

Guidelines need to be adapted for documentaries or reality television shows (which often do not allow for reasonable schedules, staggered meal times, or a health coordinator) and for productions occurring in remote areas or outside the United States.

DWT's Reopening Hollywood task force will continue to monitor developments on state, local, and industry guidance and provide updates.

DWT's cross-practice Reopening Hollywood task force is your resource for legal issues arising from COVID-19. If you have questions, please contact us at reopeninghollywood@dwt.com or reach out to your personal DWT lawyer.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.