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If, a year ago, there had been a guarantee that by March 2021 there would be three COVID19 vaccines being administered to millions daily, Hollywood would have been overjoyed. When cinemas started closing stateside and film and TV studios told workers to stay home, few allowed themselves to think of this moment, much less plan for it. Take the action plan titled “The Safe Way Forward,” which was put together by most of the industry’s guilds and unveiled in June. It spells out diligent use of personal protective equipment, strictly enforced testing regimes and quarantines, but doesn’t address what happens when vaccines arrive on the scene.
Now, as more workers are vaccinated over the next few months and as the main return-to-work agreement between employers and labor unions, inked in September, is up for renewal in April, talks on vaccination protocol will face many challenges.
Namely, will vaccines eventually become mandatory? Will “vaccine passport” programs — which may require proof of COVID-19 vaccination to work in an office or on a film set — be considered? And how will movie theaters, live concert venues, production sets and theme parks accommodate those who have medical reasons for not being vaccinated or those declining on religious grounds? Those are just starting points for the next phase of Hollywood’s COVID-19 recovery.
Asked if Netflix would mandate vaccines on its sets, co-CEO Ted Sarandos tells KCRW’s The Business podcast: “We’re not going to take a position on whether we mandate or not. I think people are pretty enthusiastic about getting back to normal life, and so we’ll play it by ear and see how the adoption of the vaccines goes.”
Right now, the fact that about 10 percent of the U.S. population has received a COVID-19 vaccine hasn’t been particularly impactful to the business of making movies and TV shows. That’s largely because, unlike teachers or the food service industry, entertainment workers haven’t received early access to vaccines. The only ones who’ve qualified for the shots are those who meet the state and federal guidelines based on their age or pre-existing conditions. The studios are said to be avoiding making any sort of effort for special access to vaccines. “We’re like, ‘No, there’s no in,’ ” says a studio source who’s fielded such requests. “We don’t want to touch that.”
When members of a production do get vaccinated, they aren’t yet afforded any special treatment on set. “Just because you’ve been vaccinated doesn’t mean you can jump the protocols,” says one COVID-19 department head. Such individuals still have to test negative before coming to set, wear a mask and social distance as they would before.
That said, the idea of “vaccine passports” has begun to generate chatter among insiders, even as the details of such a system have yet to be worked out. (For example, would someone who has recovered from COVID-19 and may have antibodies but hasn’t received a vaccine qualify for a “passport”?)
And how will anti-vaccine sentiment be handled? The U.S. Department of Labor’s Occupational Safety and Health Administration weighed in back in November 2009 amid an H1N1 pandemic, when an Ohio congresswoman passed along a constituent’s question about whether her company could force her to take time off if she refused a flu shot. The agency replied that while OSHA “does not specifically require employees to take the vaccines, an employer may do so.”
OSHA hasn’t issued any specific guidance as to COVID-19 vaccines, but H1N1 had lower hospitalization and mortality rates and was less contagious than the novel coronavirus. Some lawyers expect that President Joe Biden’s Labor Department may side with mandatory programs, but complicating the analysis is that legislation on such employer practices is pending in statehouses around the nation.
“We’ve never seen a pandemic before, but no companies right now require a flu shot or a pneumonia shot or proof of any kinds of shots to work on productions,” says Ivy Kagan Bierman of Loeb & Loeb, adding that it’s a tough situation for guilds and unions. “In the near term, given the scarcity of vaccines and a degree of vaccine hesitancy in the [overall] population, a voluntary program may make a lot of practical sense,” adds Houman Ehsan, a partner at O’Melveny & Myers.
Vaccination will likely be strongly encouraged by studios, and even if it’s on a voluntary basis, professionals can imagine scenarios where there will be perks for those who, say, carry a QR code on their phone to indicate they’ve been vaccinated. On a set, perhaps proof of vaccination will eventually substitute for tests and masks. “It seems to me that the COVID passports are going to become part of our everyday life at some point,” says Tricia Legittino, co-chair of Frankfurt Kurnit’s litigation and employment groups. “If you want to get on an airplane, you’re probably going to have to have one. If you want to go to a movie, you’re probably going to have to have one.”
Anyone adopting a vaccine passport system will need to be careful about the Americans With Disabilities Act, which prohibits discrimination on the basis of a disability. On Dec. 16, the U.S. Equal Employment Opportunity Commission issued guidance to employers about the kinds of questions they could ask when screening for vaccinations.
Also, the EEOC has laid out guidelines for how employers should handle both disability-related and religious exemptions. In both situations, the employer has to show that an unvaccinated worker would pose a direct threat to workplace health or safety. Once that’s determined, the employer must attempt to make a reasonable accommodation that would mitigate the risk (remote work, extra PPE, etc.) without undue burden. If that isn’t possible, an employer can ban the person from the workplace and, in some circumstances, terminate their employment.
Many in the production community say they’re waiting to hear how the guilds and the studios approach these issues. Those talks figure to begin soon, with Hollywood’s return-to-work agreement expiring April 30 and with Biden promising there will be enough vaccines for everyone by the end of the following month. An agreement likely wouldn’t be reached until vaccines are more widely available and would need to clarify who’s paying for the vaccine and how medical records will be kept private, and also take into account medical and religious exemptions, a source says.
Amid the uncertainty about how vaccines will change sets, several production insiders note the efficacy of current protocols and tout low transmission rates. “We’ve at least set a minimum,” says one. “Any vaccinating on top of that is icing on the cake in terms of improving the safety of that workplace.”
A version of this story first appeared in the March 10 issue of The Hollywood Reporter magazine. Click here to subscribe.
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Writers Guild of America