Amended in Assembly May 14, 2014

Amended in Assembly April 21, 2014

Amended in Assembly March 26, 2014

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 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. begin insert Existing law establishes the Department of Industrial Relations to, among other things, foster, promote, and develop the welfare of the wage earners, to improve their working conditions, and to advance their opportunities for profitable employment. end insert

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 begin delete additionally end delete require an adult film employer’s begin delete injury prevention program end delete begin insert exposure control plan end insert to include a log of information for all scenes produced, including, but not limited to, documentation that each time an employee performing in an adult film engaged in vaginal or anal intercourse, personal protective equipment 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 according to specified recommendations not more than 14 days prior to filming any scene in which the employee engaged in vaginal or anal intercourse begin insert , that the employee consented to disclosing to the Department of Industrial Relations that the employee was the subject of an HIV test, end insert 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.

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 (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 begin delete injury prevention program end delete
begin insert exposure control plan end insert shall include a log of information for all
scenes produced, including, but not limited to, documentation that:

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

(B) Each employee performing in an adult film was tested for
sexually transmitted infections, according to the recommendations
of the Centers for Disease Control and Prevention and the State
Department of Public Health current at the time the testing takes
place, not more than 14 days prior to filming any scene in which
the employee engaged in vaginal or anal intercourse begin insert , that the
employee consented to disclosing to the Department of Industrial
Relations that the employee was the subject of a human
immunodeficiency virus (HIV) test, end insert 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 made or distributed for financial gain during the
production of which performers actually engage in sexual
intercourse, including oral, vaginal, or anal penetration.

(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.

(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.

(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.

(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.

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.