Cal/OSHA Moving Closer To New Mandatory Condom Rules

LOS ANGELES—The California Division of Occupational Safety & Health's Senior Safety Engineer Deborah Gold today released what is described as "a draft provided solely for the purposes of facilitating discussion at the June 7, 2011 meeting" of the Cal/OSHA Subcommittee on Control Measures—but if this is actually the starting point for the discussion, the adult movie and internet industry is already in deep trouble. The meeting, which will take place at the California Department of Transportation building, 100 S. Main St., Room 1.040 in downtown Los Angeles is scheduled to run from 10 a.m. to 3:30 p.m., but that hardly seems enough time to deal with the 17-page "draft"—which Gold is careful to say at the beginning of the document "IS NOT a rulemaking proposal from Cal/OSHA or any other entity," and in an email dated May 27 emphasized, "Please understand that neither of these files represents a rulemaking proposal from Cal/OSHA." [Emphasis in original documents] But if it isn't, what is it? Nothing in the document indicates who created it, whether the Los Angeles County Department of Public Health, someone in Cal/OSHA itself, the AIDS Healthcare Foundation (whose petition forms the basis of the series of meetings that have been going on for more than a year), the UCLA Reproductive Health Interest Group (which has held two "debates" on the issue and has multiple members attend the committee meetings), or someone else. One thing is sure: No one from the adult entertainment industry had much if any input into the language. Interestingly, Ms. Gold's email comes just one day after a Free Speech Coalition-sponsored industry meeting to discuss performer healthcare in the wake of the AIM bankruptcy and closing, and just two days after the Los Angeles City Council adopted a resolution calling for amendments to the California Code of Regulations which would require "condoms" to be added to the list of "personal protective equipment" required when there is "occupational exposure" to blood or "other potentially infectious materials" (OPIM). What's proposed "for discussion" at the June 7 meeting, though, is nothing less than a rule requiring "a condom or other physical block that prevents the passage of blood and OPIM-STI to another person" during "occupational exposure" ("reasonably anticipated contact of the eye, mouth, genitals or other mucous membranes with genitals of another person, or with blood or OPIM—STI, that may result from the performance of an employee's duties") on the set ("area in which the performance occurred") of an adult producer ("an employer who arranges for, finances, directs, records, broadcasts, displays, or edits a scene or combination of scenes"). OPIM-STI, of course, means "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 bodily fluid when visibly contaminated with blood or all bodily fluids in situations where it is difficult or impossible to differentiate between bodily fluids." [Emphasis added] Moreover, under the section titled "Methods of Compliance," subsection (F) includes the following language: "The employer shall develop and implement work practices for the use of condoms and other barriers. These procedures shall include: "1. Only latex, polyurethane, or other FDA-approved condoms will be used. Barriers will be made of latex, polyurethane, or other non-permeable material. "2. Condoms that do not contain nonoxynol-9 and other spermicides shall be available at all times when work requiring condoms is performed. "3. Condoms will not be used with lubricants capable of compromising the integrity of the condom barrier (e.g. latex condoms will not be used with oil-based lubricants). "4. Condoms will be used with sufficient lubricant to minimize potential breakage. Lubricant shall not be irritating to mucous membranes. "5. No condom will be used that is past the marked expiration date. Condoms (internal or external) will be used according to the manufacturer’s instructions and FDA approval. "6. No condom or other barrier will be reused. "7. Barriers will be used so that only one side has contact with a performer’s genitalia, anus, or OPIM—STI. "8. No condom will be used if the interior of the condom has contact with another performer’s blood/OPIM—STI prior to being put in place for use. "9. The same condoms or other barriers will not be used for different anatomical sites or different performers. "10. Condoms and other barriers will be put in place prior to any contact with blood or OPIM—STI." (Perhaps those who have accused this reporter of "scare tactics" in assessing that the "barrier protection" under discussion includes—in addition to condoms—dental dams, latex gloves, goggles and face shields, may wish to revise their opinions.) The "draft" also contains a laundry list of measures that producers ("employers") must follow regarding handling of "contaminated" materials ("the presence or the reasonably anticipated presence of blood or other potentially infectious materials (OPIM-STI) on a surface or in or on an item" as well as "laundry which has been soiled with blood or other potentially infectious materials or which may contain sharps") and how to dispose of them: "Non-sharps waste contaminated with blood or OPIM—STI shall be disposed of in plastic bags or other impermeable containers, which are closable, constructed to contain all contents and prevent leakage during handling, storage, transport or shipping, and closed prior to removal. If outside contamination of a container of contaminated waste occurs, it shall be placed in a secondary container that meets the requirements of this subsection." But that's not all! Under "Specific Control Measures (E) Laundry" can be found: "1. Contaminated laundry shall be handled as little as possible with a minimum of agitation. Contaminated laundry shall be bagged or containerized at the location where it was used and shall not be sorted or rinsed in the location of use. "2. Whenever contaminated laundry is wet and presents a reasonable likelihood of soaking through or leakage from the bag or container, the laundry shall be placed and transported in bags or containers which prevent soak-through and/or leakage of fluids to the exterior. "3. The employer shall ensure that employees who have contact with contaminated laundry wear protective gloves and other appropriate personal protective equipment." And then there's Section (F) "Personal Protective Equipment," which contains the following: "1. Where occupational exposure remains after institution of engineering and work practice controls, the employer shall provide, at no cost to the employee, appropriate personal protective equipment such as, but not limited to, condoms, gloves, and eye protection. Personal protective equipment will be considered 'appropriate' only if it does not permit blood or OPIM—STI to pass through to or reach the employee's work clothes, street clothes, undergarments, skin, eyes, mouth, or other mucous membranes under normal conditions of use and for the duration of time which the protective equipment will be used... "4. If a garment(s) is penetrated by blood or OPIM-STI, the garment(s) shall be removed immediately or as soon as feasible. All personal protective equipment shall be removed prior to leaving the work area. When personal protective equipment is removed, it shall be placed in an appropriately designated area or container for storage, washing, decontamination or disposal. "5. Gloves. Gloves shall be worn when it can be reasonably anticipated that the employee may have hand contact with blood, OPIM—STI, mucous membranes, and non-intact skin, and when handling or touching contaminated items or surfaces... "6. Barrier protection for the eye, skin, and mucous membranes. The employer shall not permit ejaculation onto the employee’s eyes, skin, or mucous membranes. If work activities may expose the employee’s eyes, skin, or mucous membranes to blood or OPIM—STI , the employer shall provide suitable barrier protection." [Emphasis added] An "Attachment A" was also included in the packet Ms. Gold sent out, titled, "Permitting alternate measures to control risks of 'oral' sex," the purpose of which appears to be to discuss the possibility of carving out an exception for blowjobs (and maybe pussy-eating) "Until January 1, 2016"—if the "exposed individual" has received or is in the process of receiving hepatitis B, HBV and HPV vaccine shots; has a clean PCR-DNA test; has had his/her urine and swabs from his/her throat, ass and/or vagina tested for chlamydia and gonorrhea and found to be clean; and has been physically examined for "signs of STIs"—and as long as a "Physician or other Licensed Health Care Professional" signs off on it! Easy-peezy! There's lots more in the main draft, though, including such interesting tidbits as a definition of "genitals" ("the penis, vulva, vagina, urethra, and anus, and adjacent structures and mucous membranes" [emphasis added]) and even "adult entertainment" ("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"), plus sections on "Exposure control plan," "Medical services and post exposure follow-up," and "Recordkeeping"—but hey, these are all just up for discussion! To take part in that discussion, just set aside Tuesday, June 7 and plan to be at 100 S. Main Street in downtown LA—and be prepared to fight for your livelihood!