The Joint Policy Committee ("JPC") and SAG-AFTRA have issued requirements for producers that wish to issue policies mandating COVID-19 vaccinations for performers in commercials. These requirements are included in an addendum to the COVID-19 Commercial Production Safety and Testing Protocol Agreement.
When establishing a mandatory policy under the addendum, commercial producers must adhere to a number of requirements. The main points:
- Condition of Offer of Employment: A producer that implements a policy in accordance with the addendum can condition the offer of employment on verification of (i) the performer's being "Fully Vaccinated" (see below) or (ii) the performer's having a medical exemption or sincerely-held religious belief that prevents them from being vaccinated and that can be accommodated by the producer without undue hardship.
- Fully Vaccinated: "Fully Vaccinated" currently means that "at least 14 days have passed since the individual received a Johnson & Johnson COVID-19 vaccine shot or a second shot of Pfizer or Moderna COVID-19 vaccine." The addendum provides that vaccines approved by the FDA in the future also can be used.
- Inquiries About Vaccination Status: When a producer that has implemented a policy inquires about the the vaccination status of performers, the producer may only require a performer to respond “yes” or “no” as to whether any of the following is true: "The prospective employee is Fully Vaccinated OR has a sincerely held religious belief or disability that would prevent them from becoming "Fully Vaccinated."
- Exemption Requests: The producer must establish procedures "to engage in the legally-required interactive process with those [performers] requesting medical exemption or religious accommodations." The procedures for exemption requests must be specified in all notices of the vaccination policy.
- Verification: To verify vaccination status, performers can be required to provide:
- A digital vaccination card maintained by a government, vaccination provider or verification service that checks against government records; or
- A physical vaccination card or copy of a physical vaccination card.
- Transitional Period: The addendum provides for the following "Transitional Period":
"Any Performer subject to this Addendum who receives the first vaccine shot (or only vaccine shot if using the Johnson & Johnson vaccine) before October 4, 2021, and completes the course of vaccination within 6 weeks thereafter (including fulfilling the two-week waiting period after the second shot of Pfizer or Moderna COVID-19 vaccine) shall be authorized to work under a mandatory vaccination policy even if Performer is not yet Fully Vaccinated."
I believe that the intent of this provision is that a performer who received either the first shot of Moderna or Pfizer or the single shot of Johnson & Johnson prior to October 4th will be considered "Fully-Vaccinated" through November 15th, even if, prior to November 15th, she hasn't had her second shot (in the case of Moderna and Pfizer) or completed the two-week waiting period (for all vaccines). This transition period ends on November 16th.
- Children Under 12: Performers who are too young to receive a vaccine (currently, under 12 years old) are not subject to a mandatory vaccination policy "at the present time." Presumably as vaccines are made available to children under 12, the addendum will be updated.
- If Policy Implemented After Hiring: If a producer implements a mandatory vaccination policy after it hires performers, any performers who are not Fully Vaccinated (and who cannot be accommodated with an exemption) "may be cancelled but must be compensated for all days booked and/or held."
- Inquiring About Vaccination Status if No Policy is Implemented: If a producer has not implemented a mandatory vaccination policy, the producer cannot inquire about vaccination status until after an offer of employment is made. After the offer is made and before work begins, the producer may require performers to verify their vaccination status, including at the time of a pre-engagement COVID test, "provided that the offer is not contingent upon Fully Vaccinated status."
- In-Person Auditions: If a performer must be Fully Vaccinated to attend an in-person audition due to a facility or governmental requirement, producers must provide performers with an opportunity to audition virtually but cannot ask or require performers to disclose their reason for requesting a virtual audition opportunity.
- Maintaining Information Securely: Producers must maintain information about performers' vaccination status securely and may only share such information to those required to have it, in compliance with all applicable laws.
- Notice of Policy to Performers: The policy must be announced "as soon as possible, preferably in initial breakdowns or earliest casting discussions."
- Notice of Policy to JPC and Union: The producer must provide email notice to the union and JPC that it is implementing the policy.
Brian Murphy is Partner at Frankfurt Kurnit Klein & Selz where he counsels advertising agencies, advertisers, and entertainment companies as they develop and produce advertising and entertainment properties across all media. Mr. Murphy was named 2018 Attorney of the year for Advertising and Entertainment Law by Best Lawyers.
This column presents a general discussion of legal issues, but is not legal advice and may not be applicable in all situations. Consult your attorney. To contact Brian Murphy ESQ click here.
