BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Senator Ben Hueso, Chair
Date of Hearing: June 25, 2014 2013-2014 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: AB 1576
Author: Hall
As Introduced/Amended: June 18, 2014
SUBJECT
Occupational safety and health: adult films.
KEY ISSUE
Should the Legislature require additional documentation of
compliance with the bloodborne pathogen standard from adult film
employers?
ANALYSIS
Existing law provides the California Occupational Safety and
Health Act of 1973 for the purpose of assuring safe and
healthful working conditions for all California working men and
women by authorizing the enforcement of effective standards,
assisting and encouraging employers to maintain safe and
healthful working conditions, and by providing for research,
information, education, training, and enforcement in the field
of occupational safety and health.
(Labor Code §6300)
Existing law provides that the Division of Occupational Safety
and Health (DOSH) may, among other things, require the
performance of any act which the protection of the life and
safety of the employees in places of employment reasonably
demands through a special order or action order. (Labor Code
§6308)
Existing law provides that if, upon inspection or investigation,
DOSH believes that an employer has violated any standard, rule,
order, or regulation established for workplace safety, DOSH must
issue a citation to the employer. Each citation shall be in
writing and shall describe with particularity the nature of the
violation, including a reference to the provision of the code,
standard, rule, regulation, or order alleged to have been
violated. In addition, the citation shall fix a reasonable time
for the abatement of the alleged violation. (Labor Code §6317)
Existing law requires all employers create a written Injury and
Illness Prevention Plan (IIPP) which must include, but is not
limited to, all of the following:
(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; and
(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.
(Labor Code §6401.8)
Existing law also requires that all employers must correct
unsafe and unhealthy conditions and work practices in a timely
manner based on the severity of the hazard and document all
steps taken to implement and maintain the IIPP. (Labor Code
§6401.8)
Existing regulations create a Bloodborne Pathogen occupational
standard, which applies to all occupational exposure to blood or
other potentially infectious materials. The Bloodborne Pathogen
standard requires an exposure control plan as a part of an IIPP,
as well as engineering and work practice controls that remove
the bloodborne pathogen from the workplace and lower the
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likelihood of bloodborne pathogen exposure in the workplace.
The Bloodborne Pathogen standard applies to all industries,
except construction. (8 CCR § 5193)
Existing law provides a reporting, testing, and immunization
protocol for addressing communicable diseases. This protocol
includes syphilis, Human Immunodeficiency Virus (HIV), and
Hepatitis C. (Health and Safety Code §§120100-122400)
Existing law also requires that all HIV testing must be
confidential and not revealed to any non-governmental third
party, unless an individual provides written authorization for
his or her test results to be revealed. Depending on the nature
of the disclosure, penalties for willfully, maliciously, or
negligently disclosing the results of a HIV test range from
$2,500 to $25,000, plus court costs, and can include one year in
county jail. (Health and Safety Code §120980)
Existing law prohibits occupational discrimination against an
employee due to a medical condition, which includes a
HIV-positive health status. Existing law does not prohibit
refusing to hire or discharging due to an employee's medical
condition if:
(1) The employee unable to perform his or her essential
duties even with reasonable accommodations; or
(2) The employee cannot perform those duties in a manner
that would not endanger the employee's health or safety or
the health or safety of others even with reasonable
accommodations.
(Government Code §12940)
This bill would define an "adult film" as 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.
This bill would require that an adult film employer's exposure
control plan, as set out in the Bloodborne Pathogen standard,
also documents the following:
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1) That each time an employee performing in an adult film
used personal protective equipment to protect the employee
from exposure to bloodborne pathogens.
2) That 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;
3) That the employee engaged in vaginal or anal intercourse
consented to disclosing to the Division of Occupational
Safety and Health that the employee was the subject of a
human immunodeficiency virus (HIV) test, and that the
employer paid for the test; and
4) Any additional information as required by the Division
of Occupational Safety and Health.
This bill also specifies that nothing in this bill can be
construed to limit or impede the confidentiality and reporting
requirements of the existing a reporting, testing, and
immunization protocol for addressing communicable diseases in
Health & Safety Code.
COMMENTS
1. The Traditional Film Industry and California Labor Law:
As was discussed above, the Division of Occupational Safety
and Health (DOSH) is tasked with ensuring the health and
safety of all employees in the State of California in all
places of employment. This authority extends to nearly every
place of employment in the State of California. This includes
creative and artistic worksites, such as statute foundries,
art studios, and traditional and adult films.
In the case of tradition film shoots, the hazards can be quite
considerable. For example, in the 1983 film The Twilight
Zone: The Movie, a helicopter accident due to the director's
push for realism led to the death of Vic Morrow and two
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minors. Additionally, live ammunition was used on the set,
presumably for realism as well, which also led to DOSH
citations. However, these citations were not related to the
content of the film - DOSH was not citing the film because it
was violent or because the director used young actors.
Rather, the citations were for the fact that the film exposed
employees to occupational hazards without taking appropriate
steps to protect the employees.
In short, the issue is not the content, but rather how the
content is created and if the occupational hazards are
appropriately mitigated. This content-neutral enforcement
ensures that a California worker's right to a safe workplace
is a true right that applies to all workplaces.
2. Occupational Health Hazards in the Adult Film Industry:
As with the traditional film industry, the adult film industry
has certain occupational health hazards which are specific to
the industry. One of the most significant occupational health
hazards present in an adult film employment setting is
bloodborne pathogens.
Bloodborne pathogens are pathogens which are present in blood
and other bodily excretions/secretions, and can cause disease
in humans. Bloodborne pathogens include Hepatitis A, B, and
C, herpes, gonorrhea, syphilis, chlamydia, human papilloma
virus (HPV), and Human Immunodeficiency Virus (HIV). While
HIV is a frequent focus of discussion due to the fatal nature
of syndrome it causes (Acquired Immunodeficiency Syndrome or
AIDS), the above-mentioned bloodborne pathogens also carry
significant risks.
For example, Hepatitis B is more contagious than HIV and can
lead to liver failure and death. While Hepatitis B can be
prevented with a vaccine, Hepatitis C cannot and has similar
symptoms. Contracting either virus would pose lifelong
challenges to any worker.
However, even classically "minor" bloodborne pathogens can now
pose significant challenges if contracted by a worker. While
current common variants of gonorrhea and syphilis can be cured
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through antibiotics, antibiotic-resistant variants are growing
more common. Without treatment, syphilis can lead to brain
damage and death; without antibiotics, treatment would become
difficult or impossible.
While untreated gonorrhea does not lead to death, it can lead
to infertility and serious health complications in women
through pelvic inflammation disease (PID). PID can also
develop due to untreated chlamydia, though chlamydia can
currently be easily cured through antibiotic treatment.
Research has suggested, however, that chlamydia can show
resistance to antibiotics, raising the specter of future
public health issues.
3. The Adult Film Industry and the DOSH Bloodborne Pathogen
Standard:
In any occupational setting, bloodborne pathogen transmission
can occur from a worker coming into contact with blood or
bodily secretions, such as semen, vaginal
secretions/excretions, fecal matter, and anal
secretions/excretions. This can include being stuck by a
contaminated needle, infected material coming in contact with
cuts or mucus membranes, as well as bites and abrasions.
However, unique to the adult film industry, there is an
additional path for transmission: unprotected anal or vaginal
sex. Public health literature is unanimous and unequivocal
that unprotected sex is one of the primary methods of
bloodborne pathogen transmission, along with intravenous drug
use. This poses a significant occupational hazard for the
adult film industry.
As was noted above, the adult film industry, like all
industries except construction, is covered by the bloodborne
pathogen standard. The bloodborne pathogen standard calls for
the use of universal precautions, which treats all blood and
the above-discussed bodily fluids as if they are infected with
a bloodborne pathogen. To effectuate this, the bloodborne
pathogen standard calls for:
1) The creation of an exposure control plan, as a part of
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an IIPP, which lists occupations which may be exposed to
bloodborne pathogens and documents compliance with the
standard; and
2) Engineering and work practice controls which eliminate
or minimize exposure.
The use of engineering controls is not optional; it must be
done. For the adult film industry, this means that protective
barriers, such as condoms, are already required under existing
law. Doing otherwise would violate the universal precautions
tenet underpinning the standard.
Additionally, federal OSHA has a nearly identical bloodborne
pathogen standard. In short, this standard is applicable in
all 50 states.
3. DOSH Enforcement of the Bloodborne Pathogen Standard in the
Adult Film Industry:
From the Assembly Committee on Labor and Employment Analysis
on AB 1576:
Since 2006, DOSH has issued several workplace safety citations
and fines to numerous adult film producers and distributers,
including: Next Phase Distribution, Inc. (2006); Evasive
Angles and TTB Productions (2006); La Touraine, Inc. (Jan. 15
2009); Hot Desert Knights, Inc. (Mar. 24, 2009); Discount
Video (Feb. 18, 2009); Hot House Entertainment (June 27,
2008); HDK Distribution (Oct. 3, 2008); Anthony Gladdney d/b/a
MVP Entertainment Co. (Mar. 26, 2010); and Media Products,
Inc. (June 9, 2010).
More recently, in January of this year, the Occupational
Safety and Health Appeals Board (OSHAB) upheld citations
against Treasure Island Media for failing to follow the
bloodborne pathogen standard. Treasure Island Media had
argued that the employee was an independent contractor and
therefore not under the jurisdiction of DOSH. However, the
administrative law judge (ALJ) found that the employer had
control and that therefore the models were employees.
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Also of note, Treasure Island Media raised the argument that
the bloodborne pathogen standard does not apply to the adult
film industry. The ALJ rejected this argument, noting that
there was no historical evidence from the adoption of the
standard to support such a claim.
Treasure Island Media appealed the citations; the case is
currently pending before OSHAB.
4. Condom Use and Bloodborne Pathogen Transmission in the Adult
Film Industry:
In looking for independent research on bloodborne pathogens
and condom use in the adult film industry, Committee staff
found several instructive independent studies worthy of note.
In a 2009 study, funded by the Robert Wood Johnson Foundation,
researchers at UCLA found that condoms were used in only 3% of
the time in penile-vaginal contact and 10% of time in
penile-anal contact in heterosexual scenes. In homosexual
scenes, however, condom use was the norm in penile-anal
contact (77.5%). However, in a follow-up letter, the authors
stated their belief that the rate of condom use in homosexual
adult films had likely declined.
In a 2012 study, on sexually transmitted infections in the
adult film industry, which was funded by UCLA, the authors
found that, despite the industry's testing protocols, 28% of
the study participants had either a gonorrhea or chlamydia
infection. Further, the study noted that transmission rates
were higher among California's adult film performers than
Nevada's brothel workers, where condoms are mandated by state
law, along with frequent testing.
In 2010, three performers tested positive for HIV. According
to media reports, none of these performers contracted HIV
during an adult film shoot. However, many more performers
were exposed. In 2012, according to media reports, an
outbreak of syphilis led to an adult film production shutdown.
5. AB 1576 and the Adult Film Industry:
Unlike the current bloodborne pathogen, which applies
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generally to nearly all industries, AB 1576 focuses
specifically on the adult film industry. Specifically, AB
1576 mandates additional recordkeeping requirements for an
exposure control plan for an adult film employer to document
protective equipment use and testing protocols. These
requirements would fall within the existing bloodborne
pathogen framework.
6. AB 1576 and Los Angeles County's Proposition B:
Several stakeholders have raised several constitutional
concerns regarding the impacts of AB 1576 and pointed to
ongoing litigation involving Los Angeles County's Proposition
B, which regulates adult film shoots. While Proposition B
does mandate the use of condoms, several of the other
provisions of the proposition, such as fees for shooting adult
films, are outside of the scope of this bill and existing law.
Furthermore, as the case is currently being appealed, it is
unclear what impact, if any, this litigation may have on AB
1576.
However, the U.S. District Court ruled last year that the
argument made by the adult film industry that mandated condom
use violated the First Amendment "is unlikely to succeed on
the merits". Vivid Entertainment, LLC v. Fielding, CASE NO.
CV 13-00190 DDP
(August 16, 2013). Further, as was noted earlier, California's
enforcement is content-neutral, equally applied to all
employers, and therefore unlikely to run afoul of the First
Amendment.
7. AB 1576 and the Fair Employment and Housing Act (FEHA):
Stakeholders have also raised concerns that, with mandatory
use of condoms, the courts could require a HIV-positive
performer to perform with a HIV-negative performer, ruling
that a condom or similar barrier would be considered
reasonable accommodation for the purposes of the Fair
Employment and Housing Act (FEHA). As was discussed above,
medical conditions are protected under FEHA, which includes
HIV. However, as was also noted above, accommodation can only
be done to the degree that it is safe for employees at the
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worksite. Noting that a HIV-positive performer engaging in sex
with a non-HIV performer poses clear and demonstrable dangers,
it is unlikely that a court would order such an accommodation
or that such an accommodation would withstand an appeal.
8. AB 1576 and DOSH Regulations:
Starting in 2010, DOSH convened stakeholder meetings to
develop additional bloodborne pathogen regulations for the
adult film industry. In late 2013, a draft of a possible
regulation was forwarded to the Occupational Safety and Health
Standards Board for review, though the official rule making
process was not started. As of the publication of this
analysis, DOSH has not noticed any public meetings to begin
the rule making process.
However, in the draft regulation posted online, condoms or
similar barriers are explicitly required, in keeping with
universal precautions. Further, the recordkeeping provisions
are very similar to the requirements of AB 1576.
9. Proponent Arguments :
Proponents argue that the adult film industry accounts for
thousands of workplace disease infections in California every
year, and that due to the industry's lack of compliance with
the existing bloodborne pathogen standard, workers, including
but not limited to performers, are exposed to a number of
sexually transmitted diseases. Proponents note that the Los
Angeles Department of Public Health has documented an epidemic
of sexually transmitted diseases among workers in the adult
film industry and that workers in the adult film industry are
ten times more likely to be infected with a sexually
transmitted disease than members of the population at large.
Proponents believe that AB 1576 will address this by requiring
records be kept by the employer to document compliance with
the requirements that condoms and other protective barriers
have been used in any scene in which exposure to bloodborne
pathogens might occur and that employees performing in scenes
are tested for bloodborne pathogens frequently.
10. Opponent Arguments :
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Opponents argue that AB 1576 is likely unconstitutional, as
the production of adult films is protected by the First
Amendment. Opponents also argue that the true purpose of this
bill is to push the adult film industry out of California.
Opponents further note that the adult film industry is a six
billion dollar industry and is responsible for a sizeable
number of jobs in the San Fernando Valley and Los Angeles
County, including sound technicians, propmasters, constumers
and craft services. Opponents also note that numerous
productions jumped state lines to Nevada, and AB 1576 would
only worsen their departure rate. Opponents also argue that
existing testing protocols are based on recommendations of
medical experts, and that due to their efficacy, there has not
been a single reported incident of on-set transmission in ten
years.
11. Prior Legislation :
AB 332 (Hall) of 2013 required employers engaged in the
production of adult films to adopt specified practices and
procedures related to protection from sexually transmitted
diseases, including language on the use of condoms and
protective barriers. AB 332 was held under submission by the
Assembly Committee on Appropriations.
SUPPORT
AIDS Healthcare Foundation (Sponsor)
Beyond AIDS
Board of Supervisors County of Ventura
California Communities United Institute
California Employment Lawyers Association
California Medical Association
California Public Health Association-North
California State Association of Occupational Health Nurses
Health Officers Association of California
Jeffrey D. Klausner, MD, MPH Professor of Medicine and Public
Health, UCLA
National Coalition of STD Directors
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Paula Tavrow Director, Bixby Program in Population and
Reproductive Health, Fielding School of Public Health, UCLA
Planned Parenthood Affiliates of California
The American Congress of Obstetricians and Gynecologists,
District IX
The Board of Directors of the California Academy of Preventative
Medicine
Western Occupational & Environmental Medical Association
WORKSAFE
www.pornNewsToday.com
7-individuals
OPPOSITION
Adult Performer Advocacy Committee
CyberNet Entertainment
Devil Angel Distributors
Erotic Service Providers Union
Free Speech Coalition
Girlfriends Films
Harvey Milk LGBT Democratic Club
HIV Prevention Justice Alliance
Ireland Entertainment
LFP Inc.
Manwin USA
Mind Geek
The Valley Industry and Commerce Association
Transgender Law Center
Unsound Labs
Valley Industry and Commerce Association
Vivid Entertainment, LLC
530-individuals
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