Amended in Assembly March 6, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1576

Introduced by Assembly Member Hall

January 30, 2014

An act to begin delete add Section 6720 to end delete begin insert amend Sections 6319.3 and 6401.7 of end insert the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1576, as amended, Hall. Occupational safety and health: adult films.

The California Occupational Safety and Health Act of 1973 establishes certain safety and other responsibilities of employers and employees. Violations of the act under certain circumstances are a crime.

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Existing law requires every employer to establish, implement, and maintain an effective injury prevention program. Existing law requires the program to be written, except as specified, and to include certain elements, such as the employer’s system for identifying and evaluating workplace hazards and the employer’s system for communicating with employees on occupational health and safety matters.

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Existing regulations require each employer having an employee with occupational exposure, defined as reasonably anticipated specified contact with blood or other potentially infectious materials that may result from the performance of an employee’s duties, to establish, implement, and maintain an effective exposure control plan designed to eliminate or minimize employee exposure. Existing regulations require, under specified circumstances, the employer to provide, at no cost to the employee, appropriate personal protective equipment that does not permit blood or other potentially infectious materials to pass through to or to reach the employee, as specified.

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This bill would additionally require an adult film employer’s injury prevention program to include documentation that each time an employee performing in an adult film engaged in vaginal or anal intercourse, a protective barrier was used to protect the employee from exposure to bloodborne pathogens and each employee performing in an adult film was tested for sexually transmitted infections not less than 14 days prior to filming any scene in which the employee engaged in vaginal or anal intercourse and that the employer paid for the test. Because a violation of the act would be a crime under certain circumstances, the bill would impose a state-mandated local program by creating a new crime.

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This bill would require an employer engaged in the production of an adult film to adopt prescribed practices and procedures to protect employees from exposure to, and infection by, sexually transmitted diseases, including engineering and work practice controls, an exposure control plan, hepatitis B vaccinations, medical monitoring, and information and training on health and safety. The bill would define terms for those purposes. Because a violation of the act would be a crime under certain circumstances, the bill would impose a state-mandated local program by creating a new crime.

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This bill would provide that its provisions are severable.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert Section 6319.3 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

6319.3.  

(a) Except as provided in subdivision (b) of this section
and subdivision begin delete (j) end delete begin insert (k) end insert of Section 6401.7, no civil penalty shall be
assessed against any new employer in the state for a violation of
any standard developed pursuant to subdivision (a) of Section
6401.7 for a period of one year after the date the new employer
establishes a business in the state.

(b) Subdivision (a) shall only apply to an employer who has
made a good faith effort to comply with any standard developed
pursuant to subdivision (a) of Section 6401.7, but shall not apply
if the employer is found to have committed a serious, willful, or
repeated violation of that standard, or fails to abate the violation
and is assessed a penalty pursuant to Section 6430.

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begin insert SEC. 2. end insert   

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begin insert Section 6401.7 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

6401.7.  

(a) Every employer shall establish, implement, and
maintain an effective injury prevention program. The program
shall be written, except as provided in subdivision (e), and shall
include, but not be limited to, the following elements:

(1) Identification of the person or persons responsible for
implementing the program.

(2) The employer’s system for identifying and evaluating
workplace hazards, including scheduled periodic inspections to
identify unsafe conditions and work practices.

(3) The employer’s methods and procedures for correcting
unsafe or unhealthy conditions and work practices in a timely
manner.

(4) An occupational health and safety training program designed
to instruct employees in general safe and healthy work practices
and to provide specific instruction with respect to hazards specific
to each employee’s job assignment.

(5) The employer’s system for communicating with employees
on occupational health and safety matters, including provisions
designed to encourage employees to inform the employer of
hazards at the worksite without fear of reprisal.

(6) The employer’s system for ensuring that employees comply
with safe and healthy work practices, which may include
disciplinary action.

(b) The employer shall correct unsafe and unhealthy conditions
and work practices in a timely manner based on the severity of the
hazard.

(c) The employer shall train all employees when the training
program is first established, all new employees, and all employees
given a new job assignment, and shall train employees whenever
new substances, processes, procedures, or equipment are introduced
to the workplace and represent a new hazard, and whenever the
employer receives notification of a new or previously unrecognized
hazard. An employer in the construction industry who is required
to be licensed under Chapter 9 (commencing with Section 7000)
of Division 3 of the Business and Professions Code may use
employee training provided to the employer’s employees under a
construction industry occupational safety and health training
program approved by the division to comply with the requirements
of subdivision (a) relating to employee training, and shall only be
required to provide training on hazards specific to an employee’s
job duties.

(d) The employer shall keep appropriate records of steps taken
to implement and maintain the program. An employer in the
construction industry who is required to be licensed under Chapter
9 (commencing with Section 7000) of Division 3 of the Business
and Professions Code may use records relating to employee training
provided to the employer in connection with an occupational safety
and health training program approved by the division to comply
with this subdivision, and shall only be required to keep records
of those steps taken to implement and maintain the program with
respect to hazards specific to an employee’s job duties.

(e) (1) The standards board shall adopt a standard setting forth
the employer’s duties under this section, on or before January 1,
1991, consistent with the requirements specified in subdivisions
(a), (b), (c), and (d). The standards board, in adopting the standard,
shall include substantial compliance criteria for use in evaluating
an employer’s injury prevention program. The board may adopt
less stringent criteria for employers with few employees and for
employers in industries with insignificant occupational safety or
health hazards.

(2) Notwithstanding subdivision (a), for employers with fewer
than 20 employees who are in industries that are not on a
designated list of high hazard industries and who have a workers’
compensation experience modification rate of 1.1 or less, and for
any employers with fewer than 20 employees who are in industries
that are on a designated list of low hazard industries, the board
shall adopt a standard setting forth the employer’s duties under
this section consistent with the requirements specified in
subdivisions (a), (b), and (c), except that the standard shall only
require written documentation to the extent of documenting the
person or persons responsible for implementing the program
pursuant to paragraph (1) of subdivision (a), keeping a record of
periodic inspections pursuant to paragraph (2) of subdivision (a),
and keeping a record of employee training pursuant to paragraph
(4) of subdivision (a). To any extent beyond the specifications of
this subdivision, the standard shall not require the employer to
keep the records specified in subdivision (d).

(3) (A) The division shall establish a list of high hazard
industries using the methods prescribed in Section 6314.1 for
identifying and targeting employers in high hazard industries. For
purposes of this subdivision, the “designated list of high hazard
industries” shall be the list established pursuant to this paragraph.

(B) For the purpose of implementing this subdivision, the
Department of Industrial Relations shall periodically review, and
as necessary revise, the list.

(4) For the purpose of implementing this subdivision, the
Department of Industrial Relations shall also establish a list of low
hazard industries, and shall periodically review, and as necessary
revise, that list.

(f) The standard adopted pursuant to subdivision (e) shall
specifically permit employer and employee occupational safety
and health committees to be included in the employer’s injury
prevention program. The board shall establish criteria for use in
evaluating employer and employee occupational safety and health
committees. The criteria shall include minimum duties, including
the following:

(1) Review of the employer’s periodic, scheduled worksite
inspections; investigation of causes of incidents resulting in injury,
illness, or exposure to hazardous substances; and investigation of
any alleged hazardous condition brought to the attention of any
committee member. When determined necessary by the committee,
the committee may conduct its own inspections and investigations.

(2) (A) Upon request from the division, verification of
abatement action taken by the employer as specified in division
citations.

(B) If an employer’s occupational safety and health committee
meets the criteria established by the board, it shall be presumed to
be in substantial compliance with paragraph (5) of subdivision (a).

(g) The division shall adopt regulations specifying the
procedures for selecting employee representatives for
employer-employee occupational health and safety committees
when these procedures are not specified in an applicable collective
bargaining agreement. No employee or employee organization
shall be held liable for any act or omission in connection with a
health and safety committee.

(h) The employer’s injury prevention program, as required by
this section, shall cover all of the employer’s employees and all
other workers who the employer controls or directs and directly
supervises on the job to the extent these workers are exposed to
worksite and job assignment specific hazards. Nothing in this
subdivision shall affect the obligations of a contractor or other
employer that controls or directs and directly supervises its own
employees on the job.

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(i) (1) An adult film employer’s injury prevention program shall
include documentation that:

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(A) Each time an employee performing in an adult film engaged
in vaginal or anal intercourse, a condom or other protective
barrier was used to protect the employee from exposure to
bloodborne pathogens. This paragraph shall not be construed to
require that the condom or other protective barrier be visible to
the consumer in the finished film.

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(B) Each employee performing in an adult film was tested for
sexually transmitted infections, including, but not limited to, HIV,
not less than 14 days prior to filming any scene in which the
employee engaged in vaginal or anal intercourse and that the
employer paid for the test.

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(2) For the purposes of this subdivision, “adult film” means
any commercial film, video, multimedia, or other recorded
representation during the production of which performers actually
engage in sexual intercourse, including oral, vaginal, or anal
penetration.

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(i)

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begin insert (j) end insert  When a contractor supplies its employee to a state agency
employer on a temporary basis, the state agency employer may
assess a fee upon the contractor to reimburse the state agency for
the additional costs, if any, of including the contract employee
within the state agency’s injury prevention program.

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(j)

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begin insert (k) end insert  (1) The division shall prepare a Model Injury and Illness
Prevention Program for Non-High-Hazard Employment, and shall
make copies of the model program prepared pursuant to this
subdivision available to employers, upon request, for posting in
the workplace. An employer who adopts and implements the model
program prepared by the division pursuant to this paragraph in
good faith shall not be assessed a civil penalty for the first citation
for a violation of this section issued after the employer’s adoption
and implementation of the model program.

(2) For purposes of this subdivision, the division shall establish
a list of non-high-hazard industries in California. These industries,
identified by their Standard Industrial Classification Codes, as
published by the United States Office of Management and Budget
in the Manual of Standard Industrial Classification Codes, 1987
Edition, are apparel and accessory stores (Code 56), eating and
drinking places (Code 58), miscellaneous retail (Code 59), finance,
insurance, and real estate (Codes 60-67), personal services (Code
72), business services (Code 73), motion pictures (Code 78) except
motion picture production and allied services (Code 781), legal
services (Code 81), educational services (Code 82), social services
(Code 83), museums, art galleries, and botanical and zoological
gardens (Code 84), membership organizations (Code 86),
engineering, accounting, research, management, and related
services (Code 87), private households (Code 88), and
miscellaneous services (Code 89). To further identify industries
that may be included on the list, the division shall also consider
data from a rating organization, as defined in Section 11750.1 of
the Insurance Code, and all other appropriate information. The list
shall be established by June 30, 1994, and shall be reviewed, and
as necessary revised, biennially.

(3) The division shall prepare a Model Injury and Illness
Prevention Program for Employers in Industries with Intermittent
Employment, and shall determine which industries have historically
utilized seasonal or intermittent employees. An employer in an
industry determined by the division to have historically utilized
seasonal or intermittent employees shall be deemed to have
complied with the requirements of subdivision (a) with respect to
a written injury prevention program if the employer adopts the
model program prepared by the division pursuant to this paragraph
and complies with any instructions relating thereto.

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(k)

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begin insert (l) end insert  With respect to any county, city, city and county, or district,
or any public or quasi-public corporation or public agency therein,
including any public entity, other than a state agency, that is a
member of, or created by, a joint powers agreement, subdivision
(d) shall not apply.

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(l)

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begin insert (m) end insert  Every workers’ compensation insurer shall conduct a review,
including a written report as specified below, of the injury and
illness prevention program (IIPP) of each of its insureds with an
experience modification of 2.0 or greater within six months of the
commencement of the initial insurance policy term. The review
shall determine whether the insured has implemented all of the
required components of the IIPP, and evaluate their effectiveness.
The training component of the IIPP shall be evaluated to determine
whether training is provided to line employees, supervisors, and
upper level management, and effectively imparts the information
and skills each of these groups needs to ensure that all of the
insured’s specific health and safety issues are fully addressed by
the insured. The reviewer shall prepare a detailed written report
specifying the findings of the review and all recommended changes
deemed necessary to make the IIPP effective. The reviewer shall
be or work under the direction of a licensed California professional
engineer, certified safety professional, or a certified industrial
hygienist.

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SECTION 1.  

Section 6720 is added to the Labor Code, to read:

6720.  

(a) The Legislature finds and declares that the protection
of workers in the adult film industry is the responsibility of multiple
layers of government, with the department being responsible for
worker safety and the county being responsible for protecting the
public health. Therefore, this section shall not be construed to
prohibit a city, county, or city and county from implementing a
local ordinance regulating the adult film industry, provided that
nothing in the local ordinance contradicts any provision of this
section.

(b) For purposes of this section, the following definitions shall
apply:

(1) “Adult film” means any commercial film, video, multimedia,
or other recorded representation during the production of which
performers actually engage in sexual intercourse, including oral,
vaginal, or anal penetration.

(2) “Employee” means a person who is an employee or
independent contractor, regardless of whether the person is shown
in the adult film, who, during the production of the adult film,
performs sexual intercourse, including oral, vaginal, or anal
penetration.

(3) “Employer” means a company, partnership, corporation, or
individual engaged in the production of an adult film. There shall
be a rebuttable presumption that the name on the material for
commercial distribution is the employer unless there is evidence
to the contrary as demonstrated through contractual or employment
records.

(4) “Sexually transmitted disease” or “STD” means any infection
commonly spread by sexual conduct, including, but not limited
to, HIV/AIDS, gonorrhea, syphilis, chlamydia, hepatitis, genital
human papillomavirus infection, and genital herpes.

(c) An employer shall maintain engineering and work practice
controls sufficient to protect employees from exposure to blood
and any potentially infectious materials, in accordance with Section
5193 of Title 8 of the California Code of Regulations. Engineering
and work practice controls shall include, but are not limited to, the
following:

(1) Simulation of sex acts using acting, production, and
postproduction techniques.

(2) Provision of and required use of condoms and other
protective barriers whenever acts of vaginal or anal intercourse
are filmed.

(3) The provision of condom-safe water-based or silicone-based
lubricants to facilitate the use of condoms.

(4) Plastic and other disposable materials to clean up sets.

(5) Sharps containers for disposal of contaminated sharps,
including, but not limited to, any blades, wires, or broken glass.

(d) An employer shall maintain an exposure control plan in
accordance with Section 5193 of Title 8 of the California Code of
Regulations. An employer shall not be required to comply with
any provision related to establishing and maintaining a sharps
injury log, or any provision regarding regulated waste.

(e) An employer shall make available the hepatitis B vaccination
and all medical followup required by Section 5193 of Title 8 of
the California Code of Regulations, for any employee engaged in
the production of adult films, at the employer’s expense.

(f) An employer shall designate a custodian of records for
purposes of this section. A copy of the original production shall
be retained by the custodian of records.

(g) An employer shall pay the costs of required medical
monitoring, such as STD testing, and keep confidential employee
records.

(h) (1) An employer shall adopt, implement, maintain, and
update, as required, a written health and safety program that meets
the requirements of the Injury and Illness Prevention Program and
the bloodborne pathogens standard, described, respectively, in
Sections 3203 and 5193 of Title 8 of the California Code of
Regulations.

(2) An employer shall provide a training program in accordance
with Section 5193 of Title 8 of the California Code of Regulations.
The training requirements of this subdivision may be satisfied by
proof that the employee has received appropriate training at another
workplace or from an appropriate third party approved by the
department in the prior 12 months.

(i) This section shall not be construed to require condoms,
barriers, or other personal protective equipment to be visible in
the final product of an adult film.

(j) The Legislature finds and declares that screening for STDs
is a critical public health measure and should be employed
wherever possible, including the adult film industry. Therefore,
this section shall not be construed to impede or replace STD
screening of all employees, as defined in paragraph (2) of
subdivision (b), pursuant to STD screening protocols established
by the federal Centers for Disease Control and Prevention, the
State Department of Public Health, and the public health
department in the county where the filming occurs.

SEC. 2.  

The provisions of this act are severable. If any
provision of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.

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SEC. 3  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.