BILL NUMBER: AB 1576 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 6, 2014
INTRODUCED BY Assembly Member Hall
JANUARY 30, 2014
An act to add Section 6720 to amend
Sections 6319.3 and 6401.7 of 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.
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.
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.
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.
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.
This bill would provide that its provisions are severable.
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:
SECTION 1. Section 6319.3 of the Labor
Code is amended to read:
6319.3. (a) Except as provided in subdivision (b) of this section
and subdivision (j) (k) 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.
SEC. 2. Section 6401.7 of the Labor
Code is amended to read:
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.
(i) (1) An adult film employer's injury prevention program shall
include documentation that:
(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.
(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.
(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.
(i)
(j) 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.
(j)
(k) (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.
(k)
(l) 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.
(l)
(m) 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.
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.
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.