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CalOSHA Drafts Changes to Health Code for Adult - UPDATED

'Employers' would be required to pay for all testing after a possible exposure, but no word about pre-scene testing

CalOSHA Drafts Changes to Health Code for Adult - UPDATED

UPDATE: AVN has confirmed that the proposal referenced below was officially issued by CalOSHA, but in its current form, it is described as a "draft" rather than an actual "proposal."

Deborah Gold, the Deputy Chief of Health and Engineering Services for CalOSHA, recently stated in an email, "I believe that what is being circulated is a draft, not a proposal, and it was/is our intent to post it to the advisory committee webpage... With health regulations, Division staff sends draft proposals to Board staff for their review. Then those proposals, with comments, corrections etc. are sent back to Division staff, until a final proposal is reached.  What is being circulated is only a preliminary draft. The Board released it pursuant to a public records act request... We have had six advisory meetings which led to the current draft."

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Gold also said that she is no longer the lead contact on this issue, and that those responsibilities have been assumed by Senior Safety Engineer Amalia Neidhardt, who noted in an email to AVN that the current draft has been edited from an original draft created in June, 2011. She also noted, "This draft has been sent to the Board staff for their review. It is not a rulemaking proposal at this time."

The draft proposal can be found here.

CYBERSPACE—According to the MikeSouth.com website, the California Division of Occupational Safety and Health (CalOSHA) has proposed revisions to Section 5193 of Title 8 of the California Code of Regulations—revisions that directly target the production of sexually explicit material in all forms by adult producers throughout the state. Though South posted a document purporting to be a reproduction of the proposed changes, AVN has not been able to verify that the document is an official statement/proposal from the agency, and therefore, the following analysis of that document, which can be found here, should be taken with a grain of salt; it may have no real-world meaning whatsoever.

With that caveat in mind, the document, which is titled "Standards Presentation to California Occupational Safety and Health Standards Board," makes it clear that the new regulations that would be added to Title 8 are directed at the adult content production industry, and are styled as "New Section 5193.1: Sexually transmitted infections." Their scope includes "all workplaces in which employees have occupational exposure to bloodborne pathogens and/or sexually transmitted pathogens due to one or more employees engaging in sexual activity with another individual. Work processes covered by this section include, but are not limited to work activities during the production of any film, video, multi-media or other recorded or live representation where one or more employees have occupational exposure."

Section 5193.1 would supercede the bloodborne pathogen requirements and work practice controls of Section 5193, which was originally written to apply to hospitals, doctors' offices and other healthcare facilities, and indeed, the proposed changes show that the agency has listened to and read about the industry's views on Section 5193's effects on adult content production, and tried to take those comments seriously, while maintaining what it believes are necessary controls on adult production with regard to healthcare issues.

Certainly the biggest change that would be implemented by Section 5193.1 is that all performer testing for HIV and other sexually transmitted infections (STIs) would be required to be paid for by the "employer": presumably, whoever contracts with an actor or actress to perform sexual acts that will be included in an adult movie, adult website or webcam show.

"The employer shall provide all safeguards required by this section, including barriers, personal protective equipment, training, and medical services, at no cost to the employee, at a reasonable time and place for the employee, and during the employee’s working hours," Section 5193.1(a)(3) reads.

Although the proposed revision defines "barrier" as "a condom or other physical block that prevents the passage of blood and OPIM [other potentially infectious material]-STI to another person," the new section no longer requires that performers' "intact skin" be shielded from all OPIM, which is defined as "fluids [that] include, but are not limited to, pre-ejaculate, ejaculate, semen, vaginal secretions, fecal matter and rectal secretions, secretions from wounds or sores that are potentially infected with sexually transmitted pathogens, and any other bodily fluid when visibly contaminated with blood or all bodily fluids in situations where it is difficult or impossible to differentiate between bodily fluids."

On the other hand, "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."

So... gone are the hazmat suit requirement and rubber gloves for penetrating orifices, though another paragraph of the revised code would require "Ejaculation onto surfaces other than another person’s genitals, eyes, mouth or other mucous membranes or non-intact skin"; "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 and oral contact with the blood or OPIM—STI of another person."

To sum up: No ejaculation on the pussy or anus, eyes, mouth, up the nose or on any open wound, and required use of condoms for b.j.s and dental dams for pussy-licking and rimming. However, the proposal also includes an exception to the requirement that blowjobs, rimming and pussy-licking use barriers... as long as the performer has had all of his/her vaccinations and is familiar with the employer's exposure control plan: "Until January 1, 2018, employers may use alternate procedures in lieu of using condoms or other barrier protection to prevent oral contact with the OPIM-STI or genitals of another person." Just why it'll be okay to give non-condomized blowjobs for the next five-plus years is not revealed.

Oh; and there's to be no sharing of razors or other "personal care sharps"—or condoms!—between performers, and no one is allowed to pick up broken glassware with their hands.

While the proposed revisions do not require that performers be tested before engaging in on-screen sexual activity, subsection (e)(1)(A) requires that, "The employer shall establish, implement and maintain a system of medical services and post-exposure evaluation and follow-up for all employees who have occupational exposure. All medical services required by this section shall be provided at no cost to the employee, made available at a reasonable time and place and during the employee’s working hours, performed by or under the supervision of a physician or other licensed health care professional (PLHCP), and provided according to the requirements of this Section, and the recommendations of the CDC and CDPH current at the time these evaluations and procedures take place."

Employers are also required to keep, for five years, records of all the sexual activity that has taken place on their sets (defined as "the area in which the performance occurs"), as well as records regarding their exposure control plan and performers' education regarding its requirements. Moreover, if a performer is exposed to blood or other potentially infectious material (OPIM) while performing, the employer must provide the treating physician or other licensed healthcare provider with information regarding how the exposure occurred, the individuals involved, and blood from "all source individuals," which must be "collected and tested as soon as feasible and after consent is obtained in order to determine [Hepatitis A and B], HIV and syphilis infectivity."

One particularly interesting new requirement can be found in subsection (e)(3)(B)(4), which states, "While guarding the source individual’s anonymity, results of each source individual's testing shall be made available to the other exposed employees to the extent permitted by law, and the employees shall be informed of applicable laws and regulations concerning disclosure of the identity and infectious status of the source individual." In other words, though the employer can't give out an infected individual's name, it can at least inform the other performers that an infection has occurred, and be offered treatment if they themselves have been infected.

Another section of the proposed new section requires all performers to be vaccinated against Hepatitis A and B, as well as human papilloma virus (HPV), all paid for by the employer, though they are allowed to perform as long as they have at least begun the vaccination regimen. However, the new law would allow performers who object to vaccinations to opt out of receiving them, as long as they sign a waiver, the text of which can be found in Appendices A1 through A3 of the Code.

Needless to say, assuming this document is real, there's a bunch of other rules that producers and performers will have to abide by—requiring post-scene shower facilities to be available to performers is perhaps the most interesting—but what's stated above are the main points. The proposed revisions don't give a time frame regarding when (or even if) they'll be implemented, so consider the above analysis a public service—and since the proposed rules reflected in the document are likely to change somewhat before implementation, check back with AVN for further analysis of this vital change to the adult industry's relationship with CalOSHA.

Pictured: The HIV virus






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Mark Kernes

Comments

Posted 11/04/2013 by spawn777
It almost seems like all of the extra barrier protections stuff needs to be fought with the fear of these changes acknowledging some sort of failure by the state before for not changing these things then. The current system has been pretty damn effective, so this legislation, so many years after bloodborne pathogen knowledge was realized is a kneejerk reaction, and is a disservice to the industry AND the talent if it is not optional. Lukewarm content, lukewarm earnings, runaway productions.
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