Is Your Set OSHA-Compliant?

Sherman Fridman
Although it faces constant assaults from government and special interest groups, the adult film industry remains a legal, multi-billion dollar industry. And, as with all manner of legitimate businesses, adult entertainment is subject to laws and regulations.

One group of regulations that specifically affects the production of adult films concerns workplace health and safety, and is generally administered by federal or state departments of labor under the acronym of OSHA, which stands for Occupational Safety and Health Act.

Although OSHA was initially conceived and birthed by Congress as the law of the land, federal OSHA permits individual states to administer their own version of the Act — and collect the fines — on condition that the state's version is as tough, if not more so, than the federal counterpart.

Since most domestic adult film production occurs in California, Cal/OSHA is the version of OSHA referred to in this article. But if you work in other parts of the country, you're certainly not home free. Cal/OSHA is virtually identical to workplace health and safety regulations used throughout the U.S.

Most adult film producers are responsible and care about the welfare of their performers. It just makes good business sense: The performers represent the filmmakers' major assets. Stephen Modde, vice president of Human Relations and General Counsel for Falcon Studios, a Bay Area producer of gay films, says that his company is always concerned about its actors employing safe sex, and that health issues are regularly discussed in production meetings.

In fact, according to the filmmakers interviewed for this article, most executives in the adult film industry want to keep their employees and co-workers safe. But most also admit that there is an industry-wide lack of knowledge concerning the specific OSHA rules and regulations that must be complied with by production companies and producers to cover employees — not only those in front of the camera, but those behind the scenes as well.

Under OSHA, all businesses with one or more employees must have and maintain a written safety and health program. Known as an Injury and Illness Prevention Program (IIPP) in California, this program identifies potential hazards, and sets out ways to protect employees from these hazards, which are specific to the adult film production business. While the complexity and content of this program will vary depending on the size and nature of the business, no employer is exempt from this OSHA requirement, or from the requirement that the written program be available to employees at all times during business hours.

And having a written safety program tucked away in a desk drawer does not end an employer's OSHA obligations. The program must be implemented, and for the adult filmmaker this includes:

Holding safety meetings with all employees on a recurring basis to discuss the health and safety hazards of their specific jobs, and ways to minimize them.

Taking steps to protect employees from electrical hazards that exist in the workplace, particularly those associated with filmmaking's special lighting requirements.

Providing employees with adequate sanitation facilities.

Not discriminating against any employee who complains about safety or health conditions.

Recognizing that in addition to the general health and safety hazards associated with film and video production, film industry workers face additional hazards of contracting certain diseases because actors perform sex acts in the course of their work.

One important group of these diseases is referred to as sexually transmitted diseases (STDs) — transmitted by semen, vaginal fluid and fecal material, or mucous membrane contact. This disease group includes herpes, vaginal bacterial, Chlamydia, hepatitis A and gonorrhea. A separate segment of the written safety program, as well as the periodic live training sessions, should provide information as to how STDs are contracted as well as procedures to be used in order to minimize the chance of contracting these diseases.

A second, more deadly group of diseases associated with the activity of making adult films is that caused by blood-borne pathogens. These diseases include HIV as well as hepatitis B and C. Employers need to remember that not only actors are subjected to blood-borne diseases: Other film industry employees also are at risk of becoming infected, including those who clean up after scenes or those who assist in setting up scenes, particularly if they could come into contact with sharp objects such as razor blades or wires that can puncture the skin.

Because the risk of contracting a blood-borne disease is so high, and the resulting illness so severe, OSHA puts particular importance on protecting workers from exposure to blood-borne pathogens. This protection is implemented in six ways.

Exposure control: Employers in the adult film industry are required to set out, in detail, the methods they use to protect employees from contact with blood or other potentially infectious material (OPIM). This is done primarily through the use of universal precautions — a rule of conduct that assumes all blood or OPIM, no matter the source, is considered infected — and through the use of "engineering and work practice controls."

Personal protective equipment: If, after using all practical engineering and work practice controls, workers are still exposed to blood-borne pathogens, employers must insure that employees use appropriate personal protective equipment, such as condoms, dental dams, gloves and eye protection.

Hepatitis B vaccine: While employees can opt-out from taking it, employers in the adult film industry must provide, at no cost to the employee, the three-shot hepatitis B vaccine series, as well as healthcare-provider monitoring of antibody levels.

Confidential medical record: Employers must maintain, and keep confidential, a medical record for each employee.

Procedures for exposure incidents: OSHA requires that if an employee has unprotected contact with someone else's blood, semen, vaginal fluid or OPIM, the employer must provide a medical evaluation and follow up at no cost to the employee. And, if the source individual consents, the employer must pay for that person's evaluation and follow up as well.

Training: The employer, as part of the required training program, must provide each employee with training about blood-borne pathogens, including how they can protect themselves from infection and what procedure they are following if they become exposed.

There is, however, one group of workers not covered by OSHA regulations. This group consists of independent contractors, those workers — including talent — who do not receive a paycheck with taxes and other deductions taken out, but who get a fixed sum and an IRS Form 1099 at the end of the year.

But, beware: Just because you call someone an independent contractor doesn't make it so. Employer/ employee relationships have been found to include talent in both the mainstream film industry and in the exotic dance establishment business.

The basis for determining whether a person is an employee or an independent contractor depends upon the circumstances of each case, and is determined by using a series of factors. When in doubt, a lawyer familiar with your state's labor laws should be consulted to determine the proper classification to be used.

The Los Angeles County Department of Health Services estimates that within its service area alone, there are more than 200 adult film production companies employing 6,000 workers, 1,200 of whom are performers engaging in direct occupationally related sexual conduct.

Nationwide, these numbers increase exponentially. Each of these employees has the right to file a complaint regarding what they believe to be hazardous working conditions with the OSHA department having jurisdiction in their area, and by law, OSHA must investigate each complaint.

Being OSHA-compliant is not only beneficial for employees, it also protects the employer, so that when an OSHA inspector "just happens" to drop by, it truly will be "all quiet on the set."

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