CalOSHA Releases Modifications to Proposed Title 8 Sec. 5193.1

SACRAMENTO, Calif.—The California Division of Occupational Safety & Health (CalOSHA) Standards Board has released a document which contains some proposed modifications to the proposed creation of a new section of the California Health Code, designated Title 8 Sec. 5193.1, "Sexually Transmitted Infections." While most of the changes are minor, of more import are the 50 pages of responses to previous public comments on the earlier version of Sec. 5193.1, some of which attempt to answer specific objections raised by organizations and individuals who are members of, or who support, the adult entertainment industry. AVN analyzed the first draft of new Section 5193.1 here, and little has changed from that earlier analysis. One change, for instance, is the relocation of a sentence that states that an employer (as those who hire performers for an adult production have been defined) cannot require that a performer have any medical screening before allowing that performer to receive any preventative vaccinations—all of which the employer will be responsible for paying for under these new rules. The other "major" one is that performers must be given the opportunity to discuss pre-exposure prophylaxis (PrEP) to guard against HIV infection with a physician. Of course, the new Section 5193.1 still requires that no ejaculation take place on "the genitals, eyes, mouth or other mucous membranes or non-intact skin of another person," and that "Provision of and required use of condoms or other protective barriers to prevent genital contact of one person with the genitals of another person" and "Provision of and required use of condoms or other protective barriers to prevent genital contact with the blood or OPIM—STI [Other Potentially Infectious Materials—Sexually Transmitted Infections] of another person" are mandatory. [Emphasis added.] Regarding adult sets, employers will be required to provide plastic coverings or other disposable materials to facilitate cleaning of the work area," and "All equipment and environmental and work surfaces shall be cleaned and decontaminated after contact with blood or OPIM—STI at the end of each scene, and no later than at the end of each day of production." Also, "The employer shall establish work practices to ensure that body areas contaminated with blood or OPIM—STI are cleaned between sexual acts with the same or different persons." [Emphasis added] And of course, there's the big one: Sec. 5193.1(d)(4)(F), which states in part, "Where occupational exposure remains after institution of engineering and work practice controls, the employer shall provide, at no cost to the employee, appropriate personal protective equipment such as, but not limited to, condoms, gloves for cleaning, and, if contact of the eyes with OPIM-STI is reasonably anticipated, eye protection. Personal protective equipment will be considered 'appropriate' only if it prevents blood or OPIM—STI from passing through to or reaching the employee's eyes, mouth, or other mucous membranes, or non-intact skin under normal conditions of use and for the duration of time which the protective equipment will be used." [Emphasis added] That "not limited to" means that CalOSHA inspectors may require dental dams or other similar barriers for pussy-licking, goggles during blowjobs (in case of unplanned ejaculation) and/or face shields even for cumshots to the breasts, and possibly some other barrier for cumshots near the vagina. The new rule would also require that "If a garment(s) is penetrated by blood or OPIM-STI, the garment(s) shall be removed immediately. All personal protective equipment shall be removed prior to leaving the work area," and "The employer shall not permit ejaculation onto the employee’s eyes, non-intact skin, mouth or other mucous membranes. If work activities may expose the employee’s eyes, non-intact skin, or mucous membranes to blood or OPIM—STI, the employer shall provide condoms or other suitable barrier protection." (Again, dental dams, goggles, face shields, etc.) But what's perhaps most important about this document is the reproduction of comments regarding the new Sec. 5193.1 that CalOSHA has received both by mail/email and in person, such as at the well-attended meeting of the CalOSHA Standards Board in San Diego on May 21 of this year. While Free Speech Coalition and other healthcare organizations provided comments, there were also individual comments from current performers and technicians such as Sable Renae and Ring LeSable, Mia Li, Lorelei Lee, James Deen, Chanel Preston, Layla Price, Five Star, Alex Chance, Mo Reese, Ariel X (incorrectly identified as "Ariel Lex"), John Smith, Dirk Caber, Lotus Lain, Moe 'The Monster' Johnson (incorrectly identified as "Motor Monster Johnson"), Maitresse Madeline, APAC's Conrad Leavy and Bryan Sevilla, Dave Cummings, and even state officials such as Sen. Mark Leno and San Francisco Supervisor Scott Wiener, as well as defense attorney Karen Tynan and activist Eric Leue. So much for the "good guys." On the other side were the usual suspects, including all the performers who claim to have contracted HIV "while working in the adult industry," officials of AIDS Healthcare Foundation and various physicians and bureaucrats, all of whom supported the new rule—and/or found flaws in currently accepted industry safety practices. For example, UCLA Prof. Jeffrey Klausner claimed that "peer-reviewed scientific research studies have demonstrated that Performer Availability Scheduling Services (PASS) is not an effective tool in the prevention of workplace exposures to HIV and sexually transmitted infections." The CalOSHA Board's response? "The Board agrees with Dr. Klausner’s evaluation that PASS is not an effective tool in the prevention of workplace exposures to HIV and STIs." Klausner also claimed that "abrasions and rashes that may be attributed to condoms are in actuality indicative of the type of sexual acts adult film performers engage in: multiple partners over extended periods of time and adds that lubricated condoms, as required in the proposed Section 5193.1 would provide significant protection for adult film performers who engage in these types of sexual acts." Again, "The Board agrees with Dr. Klausner’s assessment." And then there's long-time industry foe Dr. Paula Tavrow, who continues to claim that, "if the industry wishes, it can use transparent condoms, simulations, and digital post-production techniques to create a film in which the consumer will not view condoms and one adult film company has successfully used post-production techniques to remove condoms digitally." That, of course, is a lie: No production company has yet been able to digitally remove condoms from a scene in which they were used. But what was the Standards Board's response? "The Board acknowledges the Commenter’s support for this proposed regulation and agrees with her assessment that techniques are available for creating a film in which the consumer will not view condoms." That's the kind of horseshit the industry is up against. Perhaps even more troubling, though, are a couple of comments from former CalOSHA Chief Inspector Deborah Gold, who chaired most of the meetings where AHF's original mandatory condom petition was discussed. "Employees must waive their rights to confidentiality of HIV testing in order to obtain employment, permitting themselves to be listed as 'available' for employment due to negative HIV and other STD tests within a set time period," she wrote. The response? "The Board acknowledges the Commenter’s support and agrees with the assessment these existing industry practices do not offer medical confidentiality and place the burden of cost on the employees." Even more worrisome, however, was Gold's next comment, which was echoed by AHF's Whitney Engeran-Cordova: "The 'availability' testing system (called PASS) discriminates unlawfully against persons with HIV.  The industry and individual employers cannot justify this discrimination as necessary, when the reasonable accommodation of using condoms or other barrier protection, and prohibiting ejaculation onto mucous membranes, eyes, and skin would protect employees against infection." Yeah, that's right: Performers should be required to have sex with with people who are HIV-positive because after all, who ever heard of someone getting infected while using a condom, right? The Board's response? "The Board acknowledges the Commenter’s support and agrees the industry and individual employers can utilize simulations, condoms or other barrier protection and digital post-production techniques to protect workers against exposure, avoid discrimination and create a film in which the consumer will not view condoms." Horseshit, horseshit and more horseshit! Not only that, but the Board "agrees with the [Commenter's] assessment that HIV PrEP does not reduce the risk of transmission of any other STD and is not an alternative to condom use."In other words, "Use PrEP if you want to; we don't care; it doesn't work anyway." Anyway, there's much, much more interesting tidbits that can be mined from the comments reproduced in the Health Code revision, which can be viewed in their entirety here.