New Terms Reached Under Return-To-Work Agreement: Delineation into Two Parts, and the Role of the Vaccine

New Terms Reached Under Return-To-Work Agreement: Delineation into Two Parts, and the Role of the Vaccine

Last year in September 2020, the AMPTP and the industry’s Unions issued a Return-to-Work (RTW) Agreement setting forth protocols for COVID-19 safety for motion picture production. The parties recently revised the RTW Agreement on July 19, 2021. This Alert will focus on the major changes in the new Agreement.

Escalation (Part I) / De-escalation (Part II)

Working conditions for motion picture workers now fall into two different sets of rules - Part I and Part II - under the newly-negotiated revisions. Part I contains the more restrictive rules while Part II contains more relaxed rules, and their applicability depends on the COVID-19 infection rate in the production’s geographic location. A production is subject to the terms and conditions of Part I when the escalation triggers have been met in the production’s geographic location. Escalation triggers are met when the geographic metropolitan area (or county if there is no metropolitan area) or province where the production is located meets two triggers:

1. the confirmed transmission rate (Rt), which is the average number of people that one person with COVID-19 is expected to infect, is 1.1 or higher for seven consecutive days; and
2. there are 10 or more new positive cases per 100,000 people based on a seven-day average for seven consecutive days starting from the first day Rt reached 1.1.

Conversely, if the infection rate metrics in a geographic metropolitan area (or county if there is no metropolitan area) or province are lower than the two escalation triggers mentioned above, then the production can utilize the de-escalation rules in Part II. Productions in the U.S. and Canada that operate under Part I rules in a geographic location that subsequently meet the de-escalating criteria may elect to utilize the Part II rules or continue using the Part I rules. However, a geographic location that starts under the Part II rules but subsequently meets the escalation criteria must move to the Part I rules. Work performed outside of the United States or Canada always fall under Part I rules. As of the date of this Alert, Los Angeles County and most other jurisdictions remain under the stricter Part I rules.

Option to Implement Mandatory COVID-19 Vaccination for Zone A

Zone A consists of all performers and background actors on set as well as any other employees present in the same workspace with them while they are not wearing PPE. Subject to a requirement to provide reasonable accommodations for those with a disability or sincerely-held religious belief preventing vaccination, a production under either Part I or Part II can implement a mandatory vaccination policy for Zone A employees as well as for those coming into close contact with minors, such as studio teachers. Notification of election to implement a mandatory vaccination policy must be provided to the applicable union(s) prior to implementation. And individuals have until September 6, 2021 to become fully vaccinated. Only FDA authorized vaccines are acceptable (Pfizer, Moderna, and Johnson & Johnson).

Productions electing a mandatory vaccination policy for Zone A may ask prospective employees whether they are fully vaccinated or have a disability or religious exception preventing vaccination. For those that answer in the affirmative, the offer of employment can be conditioned on the prospective employee providing proof to the production. Productions are responsible for collecting and verifying the proof, and for engaging in interactive dialogue with prospective employees seeking such an exception, to determine if reasonable accommodation is possible.

On productions without a mandatory vaccination policy, the employer cannot ask prospective employees about vaccination status up front and can only ask once the job offer has been accepted by the employee (in other words, the offer cannot be contingent on vaccination status). Once hired, employees can be asked to disclose their vaccination status, and those that refuse to disclose are treated as unvaccinated.

Pre-Employment Testing is Still Required

Part I requires pre-employment testing in Zones A through D, regardless of vaccination status or whether production has a mandatory vaccination policy in Zone A. In Part II, pre-employment testing is no longer required in Zone D, only, but it is required in Zones A through C, regardless of vaccination status.

Antigen tests are now allowed under both Parts I and II for pre-employment testing under certain circumstances, which may provide additional monetary savings for Producers.

Testing During Employment

After employment starts, Part I continues the same testing frequency under Zones A through D that were in effect under the prior RTW Agreement, regardless of vaccination status.

Part II relaxes testing frequency for fully-vaccinated individuals: (1) in Zone A from three times per week to only once per week; (2) in Zone B from once per week to once every two weeks; and (3) in Zone C from once every two weeks to none. Zone D does not require periodic testing during employment, in both Parts I and II. For non-fully vaccinated individuals, Part II testing frequency during employment is not reduced and follows the same enhanced frequency set forth in Part I.

Besides reduced testing frequency in Part II, employers may also gain some monetary savings in that antigen tests and expanded pool testing are allowed in some situations under both Parts I and II. Consistent with the original RTW Agreement, testing performed on a day on which the individual is not working is subject to a $250 payment ($100 for background actors), subject to exceptions for certain job classifications. But in the revised RTW Agreement, if the person tests negative and then does not report for their scheduled workday, the Producer is not required to pay that union person for the testing payment.

The revised RTW Agreement includes additional relaxation of COVID-19 safety rules at the workplace, such as less restrictive face mask and physical distancing requirements for fully-vaccinated people in certain situations and allowing buffet-style meals for the fully vaccinated. The Agreement is set to expire on September 30, 2021, at which time the parties are expected to meet again to discuss a further extension and corresponding modifications based on the then-current pandemic climate.

This Alert contains key highlights and general information only and does not constitute legal advice. Employers are advised to consult with their labor relations or counsel as to their particular situation to determine how these changes impact their workforce.

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For any questions about this Alert, you may contact:

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

Lydiann Betzer, Labor Relations Manager | lbetzer@ep.com

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

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