New York Issues Guidance for Phase 4 Reopening, Scheduled to Begin in Some Regions on June 26

On June 26, 2020, five regions (Central New York, Finger Lakes, Mohawk Valley, North Country, and Southern Tier) in New York are scheduled to begin Phase 4 of the "NY Forward" reopening plan. (For more information on New York's multi-phase reopening plan and the requirements for each region to advance from one phase to the next, see our May 5, 2020 guidance.)

As it did in connection with Phase 1, Phase 2, and Phase 3, the State has issued guidance for industries permitted to reopen in Phase 4, which include media production, higher education, and low-risk indoor and outdoor arts and entertainment.

Guidelines for Media Production

Media production activities may resume in Phase 4, provided they meet the minimum requirements set forth in the Media Production Guidelines and the Interim COVID-19 Guidance for Media Production. Media production activities include all activities undertaken in motion picture, music, television, and streaming productions on set, on location, or at any production or recording site.

Additionally, to the extent that aspects of media production involves activities for which guidance has already been provided, productions are expected to act in accordance with that guidance. For example, crew members responsible for hair and makeup are expected to act in accordance with the Interim Guidance for Hair Salons and Barbershops, and those responsible for craft services are expected to act in accordance with the Interim Guidance for Food Services.

In New York City, the Mayor's Office of Media and Entertainment (MOME) is accepting applications for permits for film productions commencing after June 30, 2020, subject to a maximum of 10 cast and crew members. MOME has published a set of Frequently Asked Questions addressing limitations on film production activity while the City is in Phase 2.

Among the standards set forth in the New York State Department of Health's guidelines and guidance are the following requirements specific to the media production industry:

• For indoor facilities or locations, the presence of employees, cast, and crew members must be limited to no more than 50 percent of the maximum occupancy for a particular area.
• To the greatest extent possible, employees, cast, and crew must maintain six feet of physical distance between each other in all locations around the media production facility or location.
  • Protocols for risk mitigation must be implemented for functions during media production that require coming within six feet of others (e.g., hair, makeup, sound, filming, performing).
  • If safety or the core activity (e.g., moving equipment, unloading materials) requires individuals to be within close proximity to each other, individuals must wear acceptable face coverings.
• Employees, cast, and crew must wear acceptable face coverings at all times within the media production facility or location, provided that they are over age two and able to medically tolerate one.
  • Performers may temporarily remove their face covering during performances/rehearsals, or when it interferes with a core activity such as hair, makeup, or wardrobe. Performers must don face coverings following those activities.
• The number of employees, cast, and crew must be limited to only essential individuals for both indoor and outdoor media production activities. Non-essential personnel and visitors are prohibited.
• Location scouts must take social distancing requirements into account and ensure that locations can be secured – via adequate security personnel – from the general public.
• Live audiences are prohibited unless they (i) consist only of paid employees, cast, and crew; (ii) number no more than the lesser of 100 individuals or 25 percent of the venue's audience capacity; and (iii) maintain six feet of social distance in all directions.
• Employees, cast, and crew in close proximity to performers without face coverings (e.g., hair stylists, make-up artists, costume designers, sound technicians, studio teachers, stunt coordinators, special effects technicians) must wear both an acceptable face covering and eye protection, such as a face shield or goggles, during the activity requiring close proximity.
• Regular cleaning and disinfection of the media production facility or location, including high-risk areas and frequently touched surfaces (e.g., studios, production sets, hair and makeup stations, trailers, break areas, eating areas, vehicles), is required.
• All media production equipment and tools (e.g., cases, cameras, eyepieces, lenses, monitors and touchscreens, dollies) are to be regularly cleaned and disinfected using registered disinfectants.
• All props, costumes, and set materials are to be cleaned and disinfected between each use and stored in sealed containers between uses.
• Employees, cast, and crew are prohibited from sharing food and beverages.
• Signage is to be posted inside/outside of the media production facility or location to remind individuals to adhere to proper hygiene, social distancing rules, appropriate use of face coverings, and cleaning/disinfection protocols.
• Employees, cast, and crew members whose job functions or roles involve close or proximate contact with cast members must be tested for COVID-19 prior to their participation in media production activities and at least once per week thereafter, when on site or location.
• Daily health screenings are required for employees, cast, crew, and, where practicable, contractors and vendors (e.g., questionnaire, temperature check), asking about:
  • COVID-19 symptoms experienced in the past 14 days;
  • Positive COVID-19 test results in the past 14 days; and/or
  • Close or proximate contact in the past 14 days with anyone who was under isolation for COVID-19 or with anyone who tested positive or who has or had symptoms of COVID-19 within the past month.
• Anyone who screens positive for COVID-19 symptoms must not be allowed to enter the media production facility/location and must be sent home with instructions to contact a healthcare provider for assessment and testing.

Guidelines for New York Institutions of Higher Education

Institutions of Higher Education in the above regions will be permitted to reopen their campuses, provided they meet the minimum requirements set forth in the Higher Education Guidelines and Interim COVID-19 Guidance for Higher Education.

Under these guidelines, institutions of higher education are expected to:

• Require face coverings to be worn any time an individual comes within six feet of another person who does not reside in the same residence.
• Advise all individuals on campus that they are required to wear face coverings in common areas or situations where social distancing may be difficult to maintain, such as riding in elevators, entering/exiting classrooms or student centers, and traveling around the campus.
• Provide face coverings to employees who directly interact with students or members of the public while at work, at no cost to the employee.
• Train employees on how to adequately put on, take off, clean (as applicable), and discard personal protective equipment.
• Adhere to hygiene, cleaning, and disinfection requirements from the CDC and Department of Health, and maintain logs that include the date, time, and scope of cleaning and disinfection, while identifying cleaning and disinfection frequency and responsibility for each type of facility.
• Provide and maintain acceptable hand hygiene stations throughout the campus.
• Conduct regular cleaning and disinfection of facilities and more frequent cleaning and disinfection for high-risk areas used by many individuals and for frequently touched surfaces.
• Conspicuously post completed reopening plans.
• Implement mandatory daily health screening practices (e.g., questionnaire, temperature check) for employees reporting to work on campus – including the review and documentation of same – addressing, at a minimum:
  • COVID-19 symptoms experienced in the past 14 days;
  • Positive COVID-19 test results in the past 14 days; and/or
  • Close or proximate contact with confirmed or suspected COVID-19 cases in the past 14 days.

Guidelines for Low-Risk Arts and Entertainment

Phase 4 also reopens low-risk indoor and outdoor arts and entertainment venues, which include museums, historical sites, aquariums, zoos and botanical gardens. Under the relevant guidelines (available here for outdoor venues, and here for indoor venues), social distancing and facial coverings are mandatory, and capacity is restricted to 25 percent for indoor venues and 33 percent for outdoor venues.

Going Forward

Employers should continue to monitor the State's guidance as it relates to their specific industry as the guidance published to date is currently characterized as "interim" and may be subject to change.

Davis Wright Tremaine attorneys remain available to help employers across New York State and elsewhere with the reopening process and will provide updated information as it becomes available.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.