By Chauntelle Anne Tibbals, PhD

YNOT – The California Division of Occupational Safety and Health’s (Cal/OSHA) Advisory Subcommittee on Control Measures met June 7 in downtown Los Angeles. From 10 a.m. to 3:30 p.m. — minus approximately one hour for lunch — committee members, health experts, adult industry insiders and other interested parties hashed and rehashed an issue that is of extraordinary importance to the adult entertainment industry: prevention of sexually transmitted infection on adult movie sets.

The gist of the issue is this: Existing federal and state laws mandate the use of “barrier protection” (condoms, for example) in all situations likely to result in “occupational exposure” to human blood or any other bodily fluids or secretions except saliva (collectively called “OPIM-STIs”). Exposure to blood and/or OPIM-STIs (like semen) is extremely likely on adult movie sets, and under the law each “exposure incident” requires, at minimum, a physician’s assessment. As I understand it, the requirements applies to all industries nationwide, not just porn in California.

Imagine how many times a day the regulations are violated in Porn Valley.

It’s a common misconception that Cal/OSHA is considering changing current state regulations that impact the adult entertainment industry. This is not the case. The June 7 Cal/OSHA meeting was not held to discuss potential changes to existing laws. According to subcommittee members, the organization does not have that kind of power. The meeting’s intent was to discuss a report the subcommittee may present to the U.S. Occupational Safety and Health Administration, with the goal of including exceptions for the adult industry or devising a set of separate regulations more appropriate for adult entertainment.

Cal/OSHA’s agenda for the day was ambitious to say the least, and the meeting was filled with vigorous (read: loud and impassioned) discussion. Because there is no way to encapsulate what went on short of being there, here is a synopsis of key points from my notes.

Cal/OSHA regulates employers and employees only. The organization has no authority to regulate independent contractors.

Interestingly, subcommittee members repeatedly asserted that adult performers are “employees.” This assertion is counter to my understanding of the word “employee” and to my understanding of the structure of most of the adult industry. Moreover, this idea does not resonate with my understanding of the vast majority of performers’ workplace experiences. Time and again, at the meeting and otherwise, performers characterized themselves as independent contractors and/or business owners.

Clearly, there is a disconnect between the industry and Cal/OSHA here. A clearer understanding of this issue and clearer definitions of “employee” and “independent contractor” are necessary.

Analogies between adult performers and Ultimate Fighting Championship participants (or workers in any other voluntary, high-risk occupation) were strongly discouraged by the subcommittee. According to committee members, UFC fighters, for example, are independent contractors. I do not know much about individual state athletic commissions, but this statement strikes me as inaccurate at best.

Regardless, parallels between adult performance work and other high-risk, physically demanding occupations definitely should be explored further. To what sorts of regulations are other high-risk folks subject, and how rigorously are those regulations enforced?

The definition of “producer” as written by Cal/OSHA is very slippery. According to Cal/OSHA documentation, “‘Producer’ means an employer who arranges for, finances, directs, records, broadcasts, displays, or edits a scene or combination of scenes….”

So, a hotel or video-on-demand website broadcasting adult content is a producer? If one were to edit a watermark into a scene, would that person become a producer? Are talent agents, who often book performers for scenes, also producers?

Cal/OSHA’s working definition of “producer” is problematic.

A proposed “health status/work clearance consortium” might offer a “cleaner,” more privacy-secure and potentially less legally problematic system for confirming a performer’s health status than a database listing health-testing results. Under the proposal, performers would be tested for a battery of STIs, including HIV, at a medical testing facility of their choice. Based on the test results, they would be “cleared for work” — or not — by a physician. Similar systems are commonplace in other health-critical occupations.

This is an excellent idea to protect performers’ privacy … except for one tiny (read: glaringly huge) issue: Who’s to define the tests required and the methodologies employed, as well as which facilities measure up to standards, among other things? Certainly a well-defined system of this sort would work just fine, but it only takes one person to forge one test or manipulate the system in some way for disaster to ensue. Sadly, history is rife with examples of spectacular failures of this kind.

I am not sure I understood the scope of the “work clearance consortium,” but it seemed to me that when a performer pointed out the gross potential for failure here, the board realized the idea needed some tightening up.

Although not necessarily in response to the consortium concept, industry trade association Free Speech Coalition has proposed an organization called Adult Production Health and Safety Services. In my understanding, APHSS would be administered by FSC and advised by a council made up of performers, producers, agents, a medical consultant and a workplace-safety attorney. The medical consultant would stay in close contact with a collection of testing centers and clinicians, ensuring the needs of adult performers were being met. An information technology specialist would create and monitor a database of performers’ health statuses and work clearances.

Thus, APHSS would provide no medical services directly and have no access to performers’ personal information, but the organization would be able to monitor the quality and consistency of reporting. In essence, APHSS would serve as a sort of information clearinghouse and fail-safe.

Cal/OSHA has proposed an exception to the existing barrier protection mandates in the case of mouth-genital contact, or oral sex, only. Accordingly, oral sex does not constitute an “exposure incident” if involved performers have completed or are in the process of receiving the Hepatitis B vaccine series and have been medically evaluated within the previous two weeks and have been okayed by the work clearance consortium.

Barrier protection could take the place of the test/vaccination mandate.

Definitions related to this exception were shaky at best. What constitutes oral sex or mouth-genital contact? Where do genitals end and adjacent body parts begin?

Note: In no other place or space does OSHA mandate or even advocate screening for STIs via testing except for in this proposed oral sex exception.

OSHA makes no mention of manual sex, or masturbation. Would this not constitute “exposure” in some way?

And finally…

There are two ways to change existing state and federal OSHA laws:
[LIST=1]