OSHA, OSHA, OSHA!!
The Cal/OSHA Advisory Subcommittee on Control Measures met in downtown Los Angeles yesterday (June 7, 2011).
The purpose of this meeting was to continue discussing the issue of bloodborne pathogens in adult production. Currently, existing federal and state laws mandate barrier protection in all instances of intended and/or likely â€œoccupational exposureâ€ of persons to blood and/or OPIM-STIs.* Since most instances of blood and/or OPIM-STI exposure occurring amongst and between performers on an adult set would be considered intended and/or likely, these workplace bodily fluid exchanges are considered â€œexposure incidents.” They thus require, at minimum, a physicianâ€™s assessment.
In other words, if you are in a workplace situation wherein you can reasonably expect to be exposed to any sort of body ooze (excluding saliva), currently existing law mandates barrier protection. Any time you come into contact with any sort of body ooze (besides saliva), it is considered a hazardous exposure and requires follow up. As I understand it, these are the general requirements for all industries, not just those in California and not just in adult.
*OPIM-STI: all bodily fluids and/or secretions except saliva
So you can just imagine how many times a day these regulations are violated in Porn Valley â€“ mehâ€¦
(calm before the meeting storm)
The meeting yesterday was NOT held to discuss potential changes to existing laws. According to subcommittee members, Cal/OSHA does not have that kind of power. The meeting was held to discuss the report the subcommittee has been working on under the auspices of possibly approaching federal OSHA with a series of exceptions for the adult industry and/or a more industry-appropriate plan. (although my naturally incredulous self is skeptical of this claim, thatâ€™s the gist of their stated purpose)
The meeting was held from 10 AM â€“ 3:30 PM in the Cal/Trans Building at 100 South Main Street (room 1.040A). Minus approximately one hour for lunch (from 12 â€“ 1 PM), the meeting took up the entire allotted time.
I wentâ€¦ because thatâ€™s what I do.
Cal/OSHAâ€™s agenda for the day was ambitious to say the least, and the meeting was filled with vigorous (read: loud and impassioned) discussion. Because there is no way to fully encapsulate what went on short of being there, here is a synopsis of key points from my notesâ€¦
A. Cal/OSHA regulates employers and employees only. They do not regulate independent contractors.
Interestingly, subcommittee members repeatedly asserted that adult performers were/are â€œemployees.â€ This assertion is counter to my understanding of the word â€œemployeeâ€ and to my understanding of the structure of most of the adult industry.Â Moreover, this idea does not resonate with my understanding of the vast majority of performersâ€™ workplace experiences. Time and again, at the meeting and otherwise, performers characterized themselves as independent contractors and/or business owners…
…so clearly there’s a disconnect. A clearer understanding of this issue is necessary.
B. Analogies between adult performers and UFC fighters (or any other voluntary, high-risk occupation) were strongly discouraged by the subcommittee as UFC fighters, for example, are considered independent contractors. I do not know much about individual state athletic commissions, however this statement strikes me as inaccurate at best.
It was suggested by an industry insider/meeting attendee that adult performers are actually more occupationally similar to professional stunt persons.
Regardless, parallels between adult performance work and other high-risk physically demanding occupations should definitely be explored further. Â What sorts of regulations are these other high-risk folks actually subject to, and how rigorously are these regulations enforced?
C. The definition of â€œproducerâ€ as it is written by Cal/OSHA is very slipperyâ€¦ Accordingly: â€œâ€™Producerâ€™ means an employer who arranges for, finances, directs, records, broadcasts, displays, or edits a scene or combination of scenesâ€¦â€
So, a hotel or VOD site broadcasting adult content are producers? If I were to edit a little â€œDr. Chauntelleâ€ watermark in to my â€œKinky & Creepy Showâ€ appearance for Girlfriends Films, would I become a producer? Are talent agents, who often book performers for scenes, also producers?
Cal/OSHAâ€™s working definition of “producer” is very problematic indeed.
D. Health status/work clearance consortium â€“ rather than having access to performersâ€™ HIV/STIs statuses, a â€œcleared for workâ€ system has been proposed. Performers will be tested for a battery of STIs, including HIV, at a medical testing facility of their choice. Based on the results, they will be cleared for work (or not) by a physician.
This is an excellent idea to protect performersâ€™ privacyâ€¦ but for one tiny (read: glaringly huge) issue â€“ whoâ€™s to say where and when and whatnot these testing batteries come from. Certainly in most instances this will work just fine, but it only takes one person to forge one test or manipulate the system in some way for disaster to ensue (can you say Marc Wallice, 1998?).
I am not sure I understood the scope of this work clearance consortium; but it seemed to me that, when a performer pointed out the gross potential for failure here, the board realized this idea needed some tightening up.
Although not necessarily in response to this consortium concept, Free Speech Coalition (FSC) has proposed an organization called Adult Production Health & Safety Services (APHSS).
In my understanding, APHSS would be administered by FSC and advised by a council made up of performers, producers, agents, a medical consultant, and a workplace safety attorney.Â The medical consultant would stay in close contact with a collection of testing centers and clinicians, ensuring the needs of adult performers were being met. An IT specialist would create and monitor a database of performersâ€™ health status/work clearances.
Thus, APHSS would provide no medical services directly and have no access to performersâ€™ personal information; but the organization would be able to monitor the quality and consistency of reporting. In essence, APHSS would serve as a sort of information clearinghouse and fail-safe.
(FSC’s Diane Duke addresses meeting attendees at one particularly heated moment)
E. Cal/OSHA has proposed an exception to the barrier protection mandates in the case of oral sex only. Accordingly, oral sex does not constitute an â€œexposure incidentâ€ if involved performers have completed or are in the process of receiving the Hepatitis B vaccine series AND have been medically evaluated within two weeks AND have been cleared in accordance with D (above). Barrier protection can also be used in lieu of the test/vaccination mandate. Definitions related to this exception (what constitutes oral sex/mouth-genital contact? what constitutes an adjacent area? etc) were shaky at best.
Note: this proposed exception (this is only a proposal â€“ at this time, oral sex still requires barrier protection) is for oral sex only. In no other place or space does OSHA mandate or even advocate screening for STIs via testing.
E. OSHA makes no mention of manual sexâ€¦ would this not constitute “exposure” in some way?
F. There are two ways to change existing state and federal OSHA laws: 1) an employer must pursue a variance or 2) a legislative change must occur.
My goodness, that was a lot!! And I’m sure that wasnâ€™t even all of it. In factâ€¦
Some other noteworthy happenings:
1. There were so many performers at this meeting!! Cal/OSHA was certainly not prepared for such a turn out. Generally, there have been about five (seriously, like five) currently active/working performers at previous meetings; and for various reasons, they rarely speak up.
Several sources have suggested there were as many as 70 (70!!) current, active, and recognizable performers at the meeting yesterday however, and many folks spoke passionately and forcefully about their beliefs and workplace experiences. Ela Darling, Nicki Hunter, Julia Ann, Danny Wylde, and Shy Love offered particularly significant insights; but everyone had really interesting things to say.
There were also many other industry insiders and supporters present, and many folks made significant contributions. FSCâ€™s Diane Duke, Bryn Pryor (aka Eli Cross), Mo (MoXXX), Nina Hartley and her partner Ernest Greene, and Paul Cambria were particularly insightful.
3. Shelley Lubben and Pink Cross Foundation (PCF) were present, but without the usual theatrics. This may have been due to a clear lack of support from any of the current adult performers in attendance and/or a verbal smack down from Shy Love, who told Shelley to stop pretending to be someone sheâ€™s not, during the â€œdefinitionsâ€ portion of the day.
3. Like Pink Cross Foundation (PCF), AIDS Healthcare Foundation (AHF) was present in full effect. Although they were not overbearing at this meeting, they were more vocal than both PCF and the extra-industry â€œexpertsâ€ in the room.
Interestingly and apparently in conjunction with AHF, Diana Grandmason/Desi Foxx (matriarch of the now defunct mother/daughter â€œFoxx girlsâ€ performance duo) and â€œPatient Zetaâ€ Derrick Burts/Cameron Reid were present for the entire meeting. At no point did either address the crowd.
4. There was minimal input from academics and/or â€œexpertsâ€ at this meeting. With two exceptions, university-affiliated sorts kept pretty quite. And although I had many comments brewing in my head throughout, on no occasion did I have to call out one of my scholarly â€œpeersâ€ for misrepresenting, misquoting, or mis-citing any adult- and/or sex worker-related scholarship. This has not been the case at other meetings.
â€¦and thatâ€™s it!! Well, thatâ€™s it for now in terms of recap. There are so many additional issues intertwined within these most obvious ones that warrant far more in-depth discussion and exploration, namely:
– the serious disconnect between citizens/adult industry workers (especially adult performers) and the state institution charged with regulating them (Cal/OSHA). Try as they might over these past years, I just do not feel that the subcommittee members have a full grasp on the overall structure of the industry nor on the nuance and intricacies contained therein.
– the not-so-veiled ideals of sexual normativity being touted throughout this “condom onlyâ€ debate by the state and most organizations outside the adult industry. These ideals and the… err… interesting tactics that are being used in attempt to reframe what constitutes â€œacceptableâ€ fantasy and individual bodily practice are extremely problematic.
Itâ€™s all very discussion worthy, donâ€™t you think?
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I am bad at taking pictures during these sorts of events… but those here are all mine, taken on 6/7/11 with my iPhone.
Questions? Comments? Email me!!
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