Frankfurt Kurnit Klein & Selz

December 22nd, 2020

AICP and Unions Agree on Updated COVID-19 Commercial Production Guidelines

Here’s an important update for commercial producers with employees covered under AICP collective bargaining agreements.

On December 15, 2020, the COVID-19 Commercial Production Safety and Training Protocol Agreement between the Association of Independent Commercial Producers (“AICP”) and several unions including the DGA and IATSE, went into effect along with an updated version of AICP’s COVID-19 Guidelines (also known as “Appendix A”). Both documents, which can be found here, outline the COVID-19 protocols applicable to Employees covered under collective bargaining agreements between AICP and the unions. Tailored to the special demands of commercial production, the Protocols are in effect until April 30, 2021 -- unless AICP and the unions agree to either rescind or extend them based on virus developments including availability and efficacy of a vaccine. The Protocols are comprehensive and we encourage you to review them with counsel and stakeholders. Here are five highlights: 

Pre-Employment Testing: All Employees, as a condition of employment, must have a COVID-19 test within three days prior to the start of their employment and must obtain a negative result prior to starting work. Either one lab-based PCR test or two rapid PCR tests (using samples collected at the same time) are acceptable, as are the results of a test taken for another employer, so long as the test was done within three days of the start of work in Zone “A” or one week before the start of work in Zone “C”. Antigen or antibody tests are not acceptable at this time, but will remain under evaluation as the science on them develops. Prior to being tested, Employers can require Employees to sign consent forms for the test and disclosure of the results. Employers must pay Employees a “stipend” of $175 (with no fringe other than payroll tax) for this pre-employment testing. 

The Zone System: Work on a commercial shoot must be broken out into three zones: A, B, and C. Zone “A” is where the actors are present and not wearing any PPE. Persons working in Zone “A” must be tested for COVID-19 and have a negative result within three days before starting work in Zone “A” and then every three days thereafter. Employees working in Zone “B” may be on set but must not be present while the actors are not wearing PPE. People working in Zone “B” must wear their PPE at all times and may only work with other employees wearing PPE, including those in Zone “A”. Zone “B” workers must be tested on a weekly basis after they receive a negative result from their Pre-Employment Test. Zone C workers are those that wear PPE at all times and can avoid “close contact” with others (i.e., be within six feet of another person for longer than 15 minutes). Zone “C” Employees must be tested at least once every two weeks. “Pool testing” is permissible for Zone “C” Employees.  

PPE and Temperature Checks: Employers must provide all Employees with face coverings. Employees working in “close contact” with others must also receive and wear a face shield (goggles are permitted). Employees may have their temperatures taken at least once per day. Employees who do not pass a temperature check can have a recheck after 15 minutes but if they fail again they may not enter the premises. Employees will not be compensated for the time they spend waiting to have their temperatures taken prior to entering the worksite. However, Employees who are sent home as a result of a failed temperature check are eligible for any applicable paid sick leave. 

Travel: When it is necessary for Employees to travel by air to the worksite, they must be tested, and receive a negative result, three days prior to departure. Once they arrive, they may work for two days before their next COVID-19 test, and then they must be tested per the regular Protocol schedule. If an Employee is subject to government-imposed isolation orders when arriving at the destination, the Protocol provides a pay schedule depending on the employee’s position, the amount of time in isolation, and whether work is performed while the Employee is in quarantine.  

COVID-19 Compliance Manager: The Protocol requires that every production designate a person (or persons) who is responsible to “monitor and enforce COVID-19 safety protocols beginning from crew call and continuing until wrap.” The COVID-19 Compliance Manager will be identified on the call sheet and has the authority to pause the production if a COVID-19 health concern arises or even recommend discipline or termination for violation of the COVID-19 health and safety protocols.  

If you have questions about the updated safety guidance, or about other employment questions affecting commercial producers and agencies, please contact Tricia Legittino at (310) 579-9632 or tlegittino@fkks.com, Wendy Stryker at (212) 705-4838 or wstryker@fkks.com, or any other member of the Frankfurt Kurnit Employment Compliance, Training & Litigation Group.