CalOSHA Standards Board OKs Advisory Committee on New Rules

SACRAMENTO, Calif.—In a "Proposed Petition Decision" recently released by the California Occupational Safety and Health (CalOSHA) Standards Board, in response to a petition to the Board filed by an anonymous applicant on April 19, 2019, the Board has greenlit "an advisory committee of stakeholders, inclusive of Petitioner, to further discuss potential development of a proposal for safety order protections specific to the adult film industry." Among the rule changes sought by the petition are some quite familiar ones: 1) that producers provide "barriers, a term which in the past has been defined to include condoms, latex gloves and dental dams, "personal protective equipment," which has previously included goggles and face shields, "training," and "medical services at no cost to employees; 2) require that all medical testing be done by laboratories and clinicians that are certified under the Centers for Disease Control's (CDC) Clinical Laboratory Improvement Amendments (CLIA), a vague definition of which may be found here; 3) that the results of all medical services, including vaccines and tests, would be handled "in a manner that protects the privacy and confidentiality" of performers; 4) that prior to finalizing casting, performers and/or their agents would be allowed "go-sees" and pre-shoot meetings that would "minimize workplace violence risks" to performers; 5) that care be taken to make sure performers are made aware of the contents of their sex scenes before shooting begins, and that they affirmatively consent to those activities—and that performers have a right to refuse to participate in scene activities that they are not comfortable with; and 6) that producers make sure performers "comply with safe and healthful work practices." If any of that sounds familiar, it should, and the Standard Board's decision recaps many of the battles between the industry, represented variously by the Free Speech Coalition and Vivid Entertainment Group, and AIDS Healthcare Foundation, which filed its first petition regarding "talent safety" in December of 2009, and continued harassing the industry about "healthcare concerns" until shortly after Election Day, 2016, when its Proposition 60 failed at the ballot box. The Standards Board then goes on to note that several of the changes requested by the petition are already part of CalOSHA regulations as found in Title 8 Sec. 5193.1, but approved the following topics for study by the advisory committee: 1) When and how "employers" could be required to pay for PASS system testing; 2) Expand the types of diseases and infections tested for under PASS; 3) Require Free Speech Coalition to report to CalOSHA any "moratoriums" on shooting that usually are called because of rumored infections; 4) Require that performer STI testing facilities be certified by CLIA and the Centers for Medicare & Medicaid Services; and 5) That "employers" be required to educate "employees" about PrEP and to offer it to performers in addition to requiring condom use. (Though CalOSHA has long considered performers to be employees and studios employers, it is unclear how the recent passage of Assembly Bill 5, the so-called "gig economy" bill, may affect those definitions.) Finally, the Standards Board recaps the lengthy time period that it has considered changes to the rules that govern workplace exposure—rules that originally were adopted to protect hospital and other healthcare workers—and warned that "any potential standard specific to the adult industry would need to build upon, rather than seek to exempt the industry from, the protection level Section 5193 prescribes." Such a stance would likely insure that those who continue to shoot hardcore content in California would quickly be driven out of business, since no one wants to watch people giving blowjobs to actors wearing condoms, pussy-licking to women using dental dams, goggles and face shields, and both (or all) parties wearing lab coats or wetsuits to avoid skin-to-skin contact, as required by Sec. 5193.1. The full petition to the CalOSHA Standards Board may be found here (.pdf). Attorney Karen Tynan, who has had frequent contacts with CalOSHA, both in advising on rules and defending adult companies against claimed violations of such rules, noted the following: "At present, the Standards Board has directed that an Advisory Committee be formed to evaluate medical tests and reimbursement, go-sees, consent, vaccines, and requiring employers to provide information regarding PrEP and actually provide PrEP to performers.  In that past, Cal/OSHA has struggled to figure out any regulation for reimbursement of testing when performers may work for a variety of companies in any given week or month, and there don’t seem to be any clear ideas on how to answer any of the above questions.  I’ve recommended to FSC that it put forward performers, producers, directors, talent agents, and clinic directors to be on the Advisory Committee so that the industry can have a voice in the process. So far, Michael Weinstein and AHF have not raised their ugly heads to jump back in to this fight. After the defeat in 2016, AHF kind of slinked away to fight about West Hollywood land use and other issues." Tynan also recommended that "production companies, individual producers, directors, talent agents, and performers to stay abreast of the process and attend any advisory committee meetings." AVN will report on the progress of this advisory committee when more information becomes available.