Tuesday, June 7, 2011
Abbreviated Account of the June 7th Cal-OSHA Advisory Committee Meeting
Abbreviated Account of the June 7th Cal-OSHA Advisory Committee Meeting
Today, I attended a meeting on the topic of barrier protection protocol for the Adult Industry. It is my understanding that it was the most well-attended meeting in terms of adult performer turn-out. So I would like to congratulate everyone from the industry who made the time and effort to attend – especially those who spoke up and provided performers with a voice. I'm fairly certain this was the first time Cal-OSHA and AHF had the opportunity to hear from so many performers currently working in the adult entertainment industry.
That said, the meeting was not held to discuss whether or not we should mandate barrier protection in all California-based pornographic productions. According to Cal-OSHA, mandates for barrier protection have been in place since the late 1990's. To put it simply, it is Cal-OSHA's position that the vast majority of heterosexual adult entertainment productions have been operating illegally for the past decade or more.
The reason we haven't run into trouble until very recently is that no one made a complaint until AHF stepped in at the end of 2009.
Cal-OSHA is currently trying to write up a new draft addressing the issue of sexually transmitted infections in the adult entertainment industry, which may include compromises such as the allowance for non-barrier-protected oral sex.
Well, that draft is about to go through another process that will likely take several months. A finalized draft MAY BE proposed to the California State Board, at which point the California State Board MIGHT approve it.
Today we discussed that new draft (and yelled a lot about why we don't want Cal-OSHA's involvement at all).
One of the first points I made at the beginning of the meeting – and it was repeated and elaborated upon many times - was based on the current definition of “Adult Entertainment” (under Section 5193.1): “the production of any film, video, multimedia, or other recorded or live representation in which performers actually engage in any activity that may result in exposure of the eyes, skin, mouth, anus, vagina, or other mucous membranes to the blood or OPIM-STI of another person if protective measures are not in place.”
Note: OPIM-STI is defined as “pre-ejaculate, ejaculate, semen, vaginal secretions, fecal matter and rectal secretions, secretions from wounds or sores that are potentially infected with sexually transmitted pathogens, any other 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.”
Such a definition would include other forms of entertainment such as Mixed Martial Arts wherein opponents battle each other, often splitting the skin and exposing both fighters and audience members to bloodborne pathogens.
Cal-OSHA did take into consideration a rewrite of the definition of “Adult Entertainment.” However, their response to the bigger issue was basically this: Every other form of entertainment has their own set of regulations which they must follow. And the barrier protection laws are no different from those in the adult industry.
The adult industry's response was that logic suggests this to be false. Bloodied athletes are regularly displayed on national television without barrier protection.
Cal-OSHA countered that – to their knowledge – athletes such as MMA fighters are often independent contractors and not employees. Cal-OSHA does not have the same jurisdiction with independent contractors. Everything cited in their draft applies only to employees.
Well, many members of the adult industry then stood up and – in my opinion – rightfully claimed to be independent contractors on the basis that they pay taxes as such and work for a variety of production companies. Further, some are incorporated for tax purposes and therefore the corporation – which is owned by the performer – loans them out to perform a service when participating in any given adult production.
Both Cal-OSHA and AHF claimed a legal precedent set forth in prior meetings that defines performers as employees and not independent contractors, despite claims to the contrary.
One proposed solution to get around the barrier protection laws is to set a new legal precedent in which performers are identified as independent contractors. However – from what I understand - that would require going to court and fighting this. I assume there are very few production companies who can afford a legal battle on the issue.
Another major point of debate was the necessity, or lack-thereof, for testing should mandated barrier protection be enforced (as it supposedly is right now). The only mention of testing put forth in Cal-OSHA's draft proposal is that of post-exposure testing should an exposure incident occur. There is also mention of testing in an addendum to the draft that includes the possibility of non-barrier-protected oral sex (the addendum would also mandate vaccines for Hepatitis and HPV).
Cal-OSHA cited that - in previous meetings - health officials claimed that testing was not a necessity should barrier protection be enforced. There is some dispute over whether or not the state can actually mandate testing due to the fact that California anti-discrimination laws prevent employers from requesting the HIV status of an employee.
But there is supposedly a way to get around this by having a licensed physician sign off on whether it is okay – or not - for a performer to work without actually disclosing an STI status. This brings up a whole other debate about which standards the physician would have to adhere to, and whether there would be any regulation as to which physicians might be used for such a purpose.
Cal-OSHA claimed not to be opposed to testing practices already in place in the adult industry, however their draft proposal does not mandate testing practices other than with a possible addendum for unprotected oral sex.
The last point I will touch upon is that of the “pop-shot” - or sequence of ejaculation which typically occurs in heterosexual and homosexual pornography. Due to the fact that an addendum is being considered for unprotected oral sex based on the statistical improbability of contracting HIV, I brought up the question as to whether the same statistical improbability would allow for ejaculation on the face, skin, or mouth.
Cal-OSHA responded that they would take this into consideration and consult health officials before providing an answer.
There are many more points to cover. But this is an abbreviated version, so I'm going to end here:
As it stands, nothing has actually changed except for that fact that we are now very much aware that Cal-OSHA considers our industry practices to be illegal, and AHF is very insistent in making sure we are penalized until we change those practices.
The problem is that those practices are the basis for our livelihood and they have gone unchallenged for years.
Further, performers in attendance were in near unanimous agreement that our testing practices under AIM healthcare were sufficient and effective, and we do not want mandated barrier protection in our industry.
SHAYA TAYEFE MOHAJER of the Associated Press has more to say HERE.
MARK KERNES of Adult Video News writes an in-depth account of the meeting HERE.