COVID-19 and the return to film production in California
July 13, 2020
By Neville L. Johnson and Douglas L. Johnson
On June 5, the governor of California gave the green light for film and television production to resume, effective June 12. This news came a few weeks after the Industry-Wide Labor-Management Safety Committee Task Force submitted a white paper containing recommended protocols to governors across the country, including California and New York. Shortly after the announcement came that production could resume, the DGA, SAG-AFTRA, IATSE and Teamsters released a comprehensive joint report titled “The Safe Way Forward” on June 12, detailing the guidelines that will need to be implemented in order to safely resume production. Although this is great news for the industry, productions must follow the guidelines and not cut corners.
The Safe Way Forward Guidelines
The guidelines are described as “a detailed set of science-based protocols serving as a path for Employers to uphold their responsibility of providing safe workplaces in a pre-vaccine, COVID-19 world” that were put together in consultation with leading epidemiologists and experts. The protocols serve as a follow-up to the white paper that was submitted by the Industry Task Force and add to the white paper by setting forth key components that will need to be implemented. The guidelines heavily emphasize testing, sanitizing and overseeing health safety on sets.
The central focus is protecting performers, as they are the most vulnerable because they cannot always physically distance or wear personal protective equipment while filming. Frequent and regular testing is heavily emphasized and the protocol for testing is largely dictated by the zoning system that has been created based on proximity to cast and on-site production crew. Companies are required to provide personal protective equipment daily and operations relating to health safety on set are to be exclusively handled by the Healthy Safety Supervisor and their team on set. The guidelines also suggest shorter, 10-hour workdays, as well as guaranteed sick leave for cast or crew members who contract COVID-19 on set. The guidelines are expected to evolve as the state of the pandemic progresses.
Federal and Local Laws
In addition to the guidelines set forth in the white paper and the Safe Way Forward guidelines, entertainment productions must also take into consideration applicable federal laws and guidelines, such as the Occupational Safety and Health Administration's COVID-19 guidelines, the CARES Act, and workers' compensation protocols for employees. In addition, when it comes to hiring or re-hiring employees who have underlying health conditions that make them more at risk of contracting COVID-19, certain provisions of the Americans with Disabilities Act may come into play.
The state of California has its own division of the Occupational Safety and Health Administration “Cal/OSHA,” which has also issued comprehensive guidance on re-opening businesses and operations in California. Cal/OSHA and Statewide Industry Guidance on COVID-19, State of California Department of Industrial Relations. In addition, on May 6, Governor Newsom issued an Executive Order N-62-20, which provides that any COVID-19 related illness of an employee will be presumed to have arisen out of an in the course of employment for the purposes of workers compensation if the following requirements are satisfied: (1) The employee tested positive within 14 days after a day that the employee worked at the employer's direction; (2) The date that the employee performed these services was on or after March 19; (3) The employee's place of employment was not at the employee's home and; (4) The employee was diagnosed by a physician who holds a physician or surgeon license issued by the California Medical Board and the diagnosis is confirmed by further testing within 30 days of the date of the diagnosis. What this effectively means is that California does not want litigation due to COVID-19 in the workplace to rise.
For Los Angeles County specifically, the applicable guidelines are located in Appendix J of the LA County Safer at Home order. Reopening Protocol for Music, Television and Film Production: Appendix J, County of Los Angeles Department of Public Health. Appendix J is essentially a checklist for productions to use in order to ensure that the production is operating under the proper protocols. The check- list covers policies and practices to protect employee health, facilitate proper communication with employees and the public, and measures to ensure physical distancing, infection control and equitable access to critical services. Appendix J and the Safe Way Forward guidelines cover much of the same practices, such as employee symptom checks, periodic testing of cast and crew and sanitizing protocols.
A question that some employers in the entertainment industry may have is whether an employer can be held liable if an employee contracts COVID-19 while on the job, as this is an issue that has come up in states other than California for violating OSHA's general duty clause by failing to provide an environment that is safe from “recognized hazards that are causing or are likely to cause death or serious physical harm.” Massey Taynarvis v. Mcdonald' s Corporation, 2020-CH-04247 (Ill. Cir. Ct. May 19, 2020); Palmer et al. v. Amazon. com Inc et al., 1:20-cv-02468 (E.D.N.Y. Jun 03, 2020); Rural Community Workers' Alliance et al. v. Smith- field Foods, Inc. et al., 5:20- cv- 06063 (W.D. Mo. Apr 23, 2020). In this context, the recognized hazard is the very real possibility of contracting COVID-19.
The laws that primarily govern this issue for employees is under workers' compensation. As stated above, Executive Order N-62-20 classifies contracting COVID-19 as a work-related injury. This means that the exclusive remedy for employees contracting COVID-19 will be workers' compensation, which shields employ- ers from being sued by employees who contract the virus during the course of their employment, provided that the four factors delineated in the executive order are satisfied. However, the same rule does not apply to independent contractors, seeing as the Workers' Compensation Act only covers employees. Cal. Lab. Code Section 3600.
Assumption of Risk
Seeing as employers may not be completely shielded from litigation if a cast or crew member contracts COVID-19 on a production, another issue is whether waivers not to sue may be enforceable. While the Editors Guild and the Cinematographers Guild have both issued guidelines that prohibit employers from asking or requiring any crew members to sign liability waivers, other unions have not specified whether waivers are prohibited.
Under California law, a liability waiver constitutes an express assumption of risk, which is “an agreement made in advance of an activity by which a party takes upon himself or herself the chance of a ‘known risk' arising from what the other party does or leaves undone.” Sweat v. Big Time Auto Racing, Inc., 117 Cal. App. 4th 130, 1304 (2004). The effect of waiver is that it relieves a defendant of its legal duty to the plaintiff. Id. In order for a waiver to be enforceable, the language must be clear, the waiver must not contravene public policy and the injury-producing act must be reasonably related to purpose of the waiver. Id. There are a number of ways to defeat a waiver. Seeing as a waiver is part of an agreement, traditional contract defenses apply. Jimenez v. 24 Hour Fitness USA, Inc., 237 Cal. App. 4th 546, 563-66 (2015). Furthermore, a waiver cannot relieve a defendant from gross negligence as a matter of public policy. City of Santa Barbara v. Sup. Ct., 41 Cal. 4th 747, 776 (2007). For example, in Jimenez, the plaintiff sued her gym when she fell off of a treadmill and onto an exercise machine, sustaining injuries. Jimenez, 237 Cal. App. 4th at 548-55. The plaintiff presented evidence that the manufacturer of the treadmill, in its safety instructions, required that treadmills be placed at least 6 feet apart from any other machine, in addition to an expert declaration that detailed the importance of a safe perimeter around a treadmill to prevent injuries from occurring in this manner. Id. at 551. The court held that there was triable issue as to whether the gym had been grossly negligent, and denied the gym's motion for summary judgment based on the waiver. Id. at 563-66.
As applied to productions, and provided that workers compensation laws are not applicable to the situation at hand, the main way that a cast or crew member who signed a release to get around a liability waiver would be to prove that the production was not following any of the multitude of guidelines that have been issued by both the state and the federal government.
The Problem of Obtaining Completion Bonds
A completion bond is an instrument created to guarantee the production of a film in the case of a problem in production. In such situations, the guarantor can loan money to complete production, take over the production, or abandon the production and pay off the financier. The major studios do not utilize completion bonds as they have deep pockets. Completion bonds are a staple in the indie production world as financiers demand the same to provide funds. Because of the pandemic there are no underwriters willing to provide full insurance for the epidemic. A few are willing for up to twenty percent of the budget at steep rates. Therefore, indie filmmakers must self-finance and/or get “pre-sale” monies from distributors to get a film made who are willing to take the risk. For large budget films, the producers are obviously in a dilemma as to whether to proceed in the absence of a completion bond. Low budget productions are in a better position to self-finance.
A migration to countries that have a better handle on COVID is occurring, and production is commencing. All of this occurs at a time where productions are in high demand due to the proliferation of streamers in the marketplace.