The leisure trade labored at a quick clip all through 2020 to swiftly adapt manufacturing protocols to adjust to federal, state, and native COVID-19 orders, and to maintain solid and crew secure. Whereas a widespread vaccine rollout is on the horizon, COVID-19 transmission charges in California—significantly in Los Angeles County—have remained excessive, prompting the state and native governments to problem new steerage to curb COVID-19 transmission.
The state has additionally enacted new, non-COVID-19-related legal guidelines relevant to all California employers, together with producers and distributors. This advisory highlights key authorized developments—each COVID- and non-COVID-related—of which California productions should be conscious and affirmatively reply to in 2021.
California State Journey Advisory
On January 6, 2021, the California Division of Public Well being issued an up to date travel advisory that daunts “non-essential” journey to any a part of California greater than 120 miles from one’s place of residence, or to different states or international locations. Non-essential vacationers from different states or international locations are “strongly discouraged” from getting into California, however those that do ought to self-quarantine for 10 days after arrival.
“Non-essential journey” consists of journey that’s thought-about tourism or leisure in nature. For instance, a person who’s working in California and travels out-of-state to go to household might want to self-quarantine upon his or her return to California earlier than they will resume work, except an exemption applies.
The journey advisory exempts sure sorts of “important journey,” together with:
- The operation, upkeep, or utilization of vital infrastructure or in any other case required or expressly approved by legislation (together with different relevant state and native public well being directives);
- Work and examine;
- Important infrastructure help;
- Financial providers and provide chains;
- Well being;
- Quick medical care; and
- Security and safety.
Moreover, the quarantine interval doesn’t apply to people who “routinely cross state or nation borders for important journey.”
Why is that this vital?
Productions could also be delayed on account of narrowed California state and/or native (metropolis or county) journey restrictions. Capturing schedules might must be rewritten to accommodate delays brought on by journey restrictions and quarantine durations, together with cancelling location bookings on brief discover, which can end in extra charges and changes to manufacturing budgets.
Ongoing productions might expertise delay on account of staffing shortages created when workers who’ve engaged in private journey are required to quarantine and be absent from work for one and one-half weeks. Carry on high of frequent state and native adjustments to journey by making it a each day (or not less than weekly) behavior to verify in with the newest adjustments to any journey restrictions or advisories.
Cal/OSHA’s Emergency COVID-19 Prevention Rule
Cal/OSHA issued extra COVID-19 security necessities for employers. These necessities underneath the Emergency Non permanent Commonplace (ETS) are in depth and can necessitate updates to most companies’ COVID-19 security paperwork to be used in California. Productions should not exempted from compliance. The complete textual content of the brand new rule may be discovered here.
One key requirement is to ascertain and implement a particular, written COVID-19 Prevention Program. A number of the required content material within the written COVID-19 Prevention Program overlaps with the COVID-19 security insurance policies required by most main exhibitors, however different provisions go above and past what was beforehand required by legislation and by distributors. For instance, there are extra restrictions and necessities for employer-provided housing and transportation, that are significantly related for productions filming on location and the place expertise travels to California for filming.
Additional, the rule requires that employers preserve an worker’s “earnings, seniority and advantages” together with “the fitting to their former job standing” upon return from go away. Whereas it’s unclear whether or not such go away should be paid or unpaid if an worker now not has accrued paid sick go away out there, Cal/OSHA held a Stakeholder’s assembly on December 11, 2020, at which period it fielded quite a few questions on this provision and promised clarification quickly within the type of a revised FAQ.
Nevertheless, the present FAQs are clear that an employer should present paid, job protected go away for the time interval workers are excluded. So till additional discover, employers ought to pay “exclusion pay” if an worker doesn’t have accrued paid sick go away out there to cowl everything of their coated absence.
Lastly, the rule imposes vital new testing and coaching necessities, each preventative and through a office outbreak.
Why is that this vital?
The ETS imposes quite a few (and burdensome) necessities on employers to commonly present testing to workers and practice them on COVID-19 security associated protocols. Many productions, significantly in Los Angeles County, are already topic to rigorous worker testing and coaching necessities, however the Cal/OSHA rule imposes these necessities on all productions.
Additional, exclusion pay presents a possible new wrinkle whether it is interpreted to be a further paid go away entitlement. In all, the ETS will impression manufacturing schedules and budgets, and compliance needs to be thought-about early on in pre-production.
- See DWT’s weblog submit here for extra particulars about the entire key necessities of Cal/OSHA’s Emergency COVID-19 Prevention Rule.
Broader Notification Necessities, Employees’ Compensation Presumption, and OSHA-Associated Reporting
California enacted Senate Invoice (SB) 1159 and Meeting Invoice (AB) 685, which require employers to evaluate and replace their practices regarding monitoring and responding to constructive checks to guard in opposition to potential legal responsibility.
SB 1159 (efficient September 17, 2020) created a presumption of employees’ compensation protection for workers in specified industries who contract COVID-19 within the office and within the case of an outbreak, for all workers. The legislation additionally imposes new reporting obligations for all employers.
AB 685 (efficient January 1, 2021) will increase potential Cal/OSHA publicity regarding COVID-19 by implementing new reporting necessities and eliminating the necessity for advance discover of potential Severe and Willful violations. A major impact of AB 685 on productions is that it requires employers to offer written discover of potential publicity to COVID-19 to all workers and subcontractors (and their union representatives) who have been on the premises concurrently a person with COVID-19 whereas the person was infectious.
This written discover should be supplied inside one enterprise day of the employer studying of the potential publicity. AB 685 additionally specifies the content material that should be included within the written discover, such because the disinfection and security plan that the corporate plans to implement and full per CDC pointers.
- See DWT’s weblog submit here for extra particulars about the entire key necessities of SB 1159 and AB 685.
Why is that this vital?
There at the moment are a number of reporting necessities underneath state and native legal guidelines, together with Cal/OSHA’s ETS, which should be complied with instantly when an employer is on discover that an worker examined constructive for COVID-19 or had shut contact with somebody who examined constructive. A few of these notification and reporting obligations overlap, however all should be complied with.
Non-compliance may end up in a manufacturing being shut down till the company deems the corporate is in compliance, together with different financial penalties. Given the tight deadlines imposed by the varied, overlapping guidelines, it’s important that employers have written discover templates ready upfront, earlier than an outbreak happens.
Stricter Face Overlaying Steerage
On November 16, 2020, the California Division of Public Well being issued an updated Guidance for the Use of Face Coverings. This up to date steerage, relevant all through the state of California, mandates {that a} face masking is required to be worn always when outdoors of the house, with some restricted exceptions.
In keeping with the steerage, people are exempt from carrying face coverings within the following particular settings:
- When in a automotive alone or solely with members of their very own family;
- When working in an workplace or in a room alone;
- When actively consuming or ingesting, so long as they’re able to preserve a six-foot distance from individuals who should not members of their identical family;
- When outside and sustaining not less than six ft of distance from others not of their family;
- When acquiring a service involving the nostril or face, for which non permanent elimination of the face masking is critical to carry out the service;
- When employees are required to put on respiratory safety; and
- When particularly exempted from carrying face coverings by different California Division of Public Well being Steerage.1
The steerage additionally describes exemptions to the face masking requirement for people primarily based on age, incapacity, and office security. For instance, individuals underneath the age of two should not required to put on face coverings.
If an worker’s critical medical situation precludes her or him from carrying a face masking, the employer ought to interact within the interactive course of to find out an affordable lodging. Examples of an affordable lodging might embrace a face defend or different legally compliant masking, extra social distancing, or different affordable lodging which will substitute the face masking, if applicable to the work circumstances. Employers must also think about providing workers a go away of absence if such affordable lodging wouldn’t safely allow the worker to carry out the important capabilities of his or her job.
Why is that this vital?
Some workers might object to carrying a masks for private, medical, political, spiritual, or different causes—a few of which can be protected underneath the legislation and others which might not be, relying on the circumstances. Be ready with a transparent coverage on when masks will probably be required and the way workers should instantly request an lodging to this coverage in order that human assets can promptly consider an worker’s refusal, underneath relevant legislation.
Expanded Definition of “Impartial Contractor”
At one level, greater than 30 amendments have been proposed to amend AB 5, the landmark 2019 laws which codified the stringent ABC check for employee classification. Lots of the proposed amendments affected the leisure trade, and quite a few lobbyists demanded particular inventive professionals be exempted from the ABC check underneath the skilled providers exemption.
Lobbyists additional pushed for broadening of the slim enterprise to enterprise exemption, together with efforts aimed toward strengthening the viability of providers and mortgage out agreements frequent to productions. The laws has been (and nonetheless is) a clumsy match with the leisure trade customary and observe.2
The web results of collective lobbying efforts was AB 2257, which clarifies and adjustments earlier exceptions, comparable to lifting the 35 submission per 12 months cap on work by freelance writers and photographers, and provides new occupations as qualifying as skilled providers underneath the exemption, together with:
- Freelance writers, editors, photographers, photojournalists, videographers, photograph editors, high quality artists (now outlined as somebody who creates murals appreciated for the imaginative, aesthetic, or mental content material, together with work, sculptures, and so on.), translators, editors, copy editors, illustrators, content material contributors, producers, narrators, or cartographer for a journal, e book, periodical analysis, different publication or instructional, educational, or tutorial work, all topic to additional phrases and situations set forth within the exemption.
The brand new legislation just isn’t as broad as lobbyists pushed for—particularly, the skilled providers particularly carves out utility of the exemption to its trade in sure professions comparable to photographers, photograph editors, photojournalists, and videographers.
The brand new legislation created a wholly new exception to the ABC check for the recording trade, exempting recording artists and almost each occupation related to a sound recording or musical composition. (Notably absent from the brand new legislation are exemptions for movie and tv unit manufacturing crews engaged on reside or recorded performances for audio visible works.)
The people in these classes could also be categorized as unbiased contractors (topic to the Borello check) in the event that they fulfill an extended record of standards. Likewise, a musical group or musicians could also be contractors for the aim of a single engagement, except the group performs in an orchestra, performs at a theme/amusement park, performs in a musical theater manufacturing, headlines a efficiency with greater than 1,500 attendees, or performs at a competition that sells greater than 18,000 tickets per day.
Particular person efficiency artists enjoying their unique work can also be categorized as contractors as long as they’re free from the management and path of the hiring entity, retain the rights of their mental property, set their very own phrases of labor, are capable of negotiate their charges, and are free to simply accept or reject efficiency engagements.
AB 2257 included a lot of different exemptions pertinent to the leisure trade, comparable to an exemption for single engagement occasions. The laws additionally expanded the enterprise to enterprise exemption.
First, it eliminated the requirement {that a} enterprise service supplier furnish providers on to the contacting enterprise moderately than to prospects of the contracting enterprise as long as the “service supplier’s workers are solely performing the providers underneath the contract underneath the title of the enterprise service supplier and the enterprise service supplier commonly contracts with different companies.”
The brand new legislation additional clarified {that a} enterprise may be situated on the contractor’s dwelling. It additional now not requires the contracting enterprise to truly contract with others for a similar providers supplied, however moderately that it promote and maintain itself out to public as out there for like providers. Lastly, it clarified that proprietary supplies should not included within the definition of “instruments, autos, and tools” when analyzing whether or not the exemption is met.
The legislation added a curious addition to the enterprise to enterprise exemption, as follows:
When two bona fide companies are contracting with each other underneath the situations set forth in subdivision (a), the dedication of whether or not a person employee who just isn’t performing as a sole proprietor or fashioned as a enterprise entity, is an worker or unbiased contractor of the enterprise service supplier or contracting enterprise is ruled by Part 2775.
It’s unclear how this provision will probably be interpreted by courts and or the Labor Commissioner when utilized to mortgage out agreements, that are extensively used within the leisure trade for the tax benefits they supply to each the corporate and the person. Ever because the passage of AB 5, there was widespread concern that the laws would have an effect on the usage of mortgage out agreements.
There was hope that AB 2257 would come with extra trade particular exemptions and permit for the versatile (and distinctive) contractual preparations. Lobbyists have insisted because the legislation was enacted that it doesn’t have an effect on the utilization of mortgage out firms to do enterprise. Nevertheless, till this clause is examined by a courtroom or the Labor Commissioner, it’s not sure whether or not or not mortgage out preparations will probably be affected and if a courtroom will honor the trade’s long-standing utilization of this contractual association with interpretative steerage or case precedent.
For now, the clause clarifies that the person employee working by means of a mortgage out remains to be analyzed underneath the ABC check as to each their mortgage out firm and the contracting enterprise (i.e., manufacturing firm).
Why is that this vital?
AB 2257 gave the leisure trade some (however not sufficient) reduction from the restrictive ABC check. Extra intense lobbying to alter the exemptions and utility of the check is probably going, and we will anticipate extra laws sooner or later.
For now, employers must amend their written contractor agreements with people their firm doesn’t classify as workers. Some people might qualify for a couple of exemption, so it is suggested that employers collect documentary proof in help of any and all relevant exemptions. Employers ought to work with authorized counsel to arrange an up to date compliant contractor settlement. Specifically, employers ought to think about the energy of their written mortgage out agreements underneath the business-to-business exemption.
Key Takeaways for Producers and Distributors
- 1. Make sure to commonly verify and adjust to the California state journey advisory and any native journey restrictions when resuming filming in 2021.
- 2. Persistently and commonly replace firm templates used for notifying solid, crew, the relevant guilds, and others within the occasion of office COVID-19 publicity.
- 3. Persistently and commonly replace office face masking insurance policies for compliance with the up to date statewide steerage, whereas additionally taking needed steps to maintain solid, crew, members, and communities secure.
- 4. With the help of authorized counsel, evaluate contractor agreements used for productions with inventive professionals and mortgage out firms to deal with employee classification points and replace relevant agreements in accordance with the relevant exemption(s). Audit workforce for compliance with AB 2257.
- 5. Proceed to watch relevant federal, state, and native steerage and orders for updates, and replace office insurance policies and protocols as wanted.
FOOTNOTES
1 In some counties and underneath some guild agreements, there are exemptions to the face masking requirement for expertise when on-camera. Productions ought to be sure you evaluate and adjust to the relevant authorities orders and guild agreements (if any).
2 Underneath the ABC check, a employee is correctly thought-about an unbiased contractor to whom a state wage order doesn’t apply provided that the hiring entity establishes the entire following: “(A) The individual is free from the management and path of the hiring entity in reference to the efficiency of the work, each underneath the contract for the efficiency of the work and in reality[;] (B) The individual performs work that’s outdoors the same old course of the hiring entity’s enterprise[; and] (C) The individual is typically engaged in an independently established commerce, occupation, or enterprise of the identical nature as that concerned within the work carried out.” Cal. Labor Code § 2775(b)(1).
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