Cal/OSHA Standards Board Hears From Adult Community—and Opponents

SAN DIEGO, Calif.—The Cal/OSHA Standards Board met today, and it's become clear that they now take the adult industry seriously: They rearranged the day's agenda to address the adult community's concerns first, and allowed several members of the adult community and its opponents to speak at length during the Public Meeting portion. The Board's first order of business, after opening the hearing at 10 a.m., was for Chair David Thomas to call on Eric Berg, a representative of the Division of Occupational Safety and Health (Cal/OSHA), to report on what progress the Division had made on the two competing petitions before it: Petition 557, proposed by AIDS Healthcare Foundation and Petition 560, proposed by Free Speech Coalition. The short response? The Division had made little progress since the January 31 meeting in Oakland, though the advisory committee formed during that January meeting continues to meet. Berg also said that its main function at this time is education and outreach, and that the Division was not proposing any rulemaking at this time. That report wasn't quite enough for the Board's Executive Assistant Sarah Money, who asked Berg whether there had also been discussion within the Division regarding revisions to the current Cal/OSHA rules regarding the use of barrier protections for adult content production, or any decision whether to support one petition or the other. Berg essentially reiterated that the Division had been focusing on education and outreach, and Money didn't inquire further. Thomas then called for public comment, and the first to speak on the adult industry issue was attorney Karen Tynan, who noted that she first became involved with performer health issues in 2010, when the Division had subpoenaed the identities of 2,000 performers who had been tested at the AIM health clinic—a dispute that eventually involved the ACLU, and which resulted in the subpoena being quashed and the state required to pay attorney fees to the moving attorneys. Tynan mostly used her time at the rostrum to thank the Division for continuing its outreach program and said that she hopes the "true stakeholders are recognized by the Division," whom she identified as performers, studio owners and agents, and that the Division would pay attention to their opinions and needs. The next speaker was Ian O'Brien, who was recently hired by Free Speech Coalition as its Director of Scientific and Regulatory Affairs, and who said he welcomed the opportunity to "help craft policy" and to "address the realities of this industry" in a collaborative way with the Division to "incorporate the voices of the industry and its workers whose input has been historically marginalized." Next up was Jennifer Ketcham, who performed in the adult industry for several years as Penny Flame, and who now is a medical social worker at a private clinic in the San Diego area. She too voiced her appreciation that the Division would be collaborating with the interested parties regarding performer safety. "Historically, the industry has not been super-keen on increased regulations," Ketcham stated, "and the largest factor in my industry, as safe as it is, has been OSHA and Cal/OSHA, so thank you for that." However, she added, the most important factor in creating long-term change is enforcement of the existing regulations, and she supported that. "Law enforcement will insure safety of performers over time," she said, adding that while use of PrEP and frequent testing are good, they don't safeguard against all infections that performers may acquire, and so she supported the continued use of condoms. Mia Li, who's been a performer for four years, spoke next, also thanking the Board and the Division for listening to the industry's concerns at the January 31 meeting, but noted that there's a lot of stigma attached to being an adult performer, though the January meeting went a long way towards decreasing that stigma. She described that as "a big win for performers ... as it enabled us to continue practicing agency over our bodies and health choices over our bodies. "As a woman of color and as a worker in this unique and very stigmatized industry," she said, "it is really empowering to know that when I come to a Cal/OSHA meeting that my voice matters, that my peers' voices matter … it makes a big difference … we as workers have to make informed choices over our bodies every time we come to set, [and] I believe that Cal/OSHA now understands the importance of bodily agency, that our bodies should be our choice to determine our safety and risk within the system that we collaboratively make." Li also pointed out that the industry largely consists of independent contractors and entrepreneurs who often make their own content, and that Cal/OSHA should respect that distinction. She also said that she expected the industry's testing protocols to evolve and improve over time. Former actor and current AIDS Healthcare employee Derrick Burts also spoke to the Board, and he told them how the fact that he had contracted several STDs and HIV during the period when he was also performing in the industry had caused him great stress and anxiety in his life, and, "The last thing I want to see happen is for this to continue to happen to other people, the exposures that continue to happen into this industry because they blatantly disregard the law." He also said he realized that there is little HIV in the industry, but claimed that one in every four performers would come down with an STD at some point, which he blamed partly on Cal/OSHA's "lack of enforcement" of its rules. Free Speech's Director of Policy and Industry Communications Siouxsie Q spoke directly after Burts, and she began by thanking the Division and the Board for their attention to this issue, and expressed optimism that those bodies had begun to hear what performers had to say on the topic of their own health. "Our industry is at a unique crossroads between public health, sexual health and workplace safety, and we understand that the conversation around workplace safety in the adult film industry is nuanced and complicated, as it includes issues of reproductive rights and sexual health as well," she told the Board. "As a woman, it is important to me that my choices about what happens to my body remain my goal." She added that she felt that the industry's current testing protocols were more effective at controlling disease than the mandated barrier protections, and as evidence, she cited the fact of no HIV infections on an adult set in over 12 years. She also promised that the industry would continue to collaborate with the Standards Board to resolve their differences. The Board also heard briefly from performer Marcello, who noted that, "A lot of us love our jobs and want to keep them," but feared that if condoms and other protective devices are mandated, production would leave the U.S. since "porn is worldwide." Director Five Star spoke next, noting that she used to work for a company that had moved out of state in part in order to escape Cal/OSHA's restrictions, and stated that she had faith in the industry's current protocols. She was followed by performer/producer Tim Woodman, who mainly thanked the Board for listening to performers, and then videographer and agent Sadie Shaw, who assured the Board that all the performers she works with are in the industry because they want to be and that they're comfortable with the choices they make, and she thanked the Board for listening to their concerns. Of course, no Standards Board meeting would be complete without a speech from Adam Cohen, AHF's Director of Advocacy and Policy Research, who began by stating that "Dozens of adult film studios have been cited by Cal/OSHA for failing to comply with existing regulations" since 2004—at which point Chairman Thomas asked what those citations were for, and Cohen responded that they were for violating the bloodborne pathogens standard through lack of condom use, and Thomas then asked if that was the current law, and Cohen agreed that it was. Cohen then continued, noting that only a few studios currently require condom use, and that he wanted performers to know that studios would be responsible for any medical treatment they might need, and that they could "protect their own interests" by filing complaints against companies and agents that don't require their use. Cohen also said that he had provided the Board with a new study created by the World Health Organization regarding antibiotic-resistant gonorrhea, which he claimed was "sometimes impossible to treat." He stated that the WHO recommended increased condom use to prevent infection, and said another (unnamed) study had found "high rates of gonorrhea infections among adult film performers due to lack of condom use." He also claimed that "STIs acquired at work in this industry are easily if unintentionally spread to the general public," a claim for which there has been no evidence produced to date. Cohen was immediately followed by FSC Executive Director Eric Leue, who first wanted to distinguish the policies of FSC from those of APAC, an independent organization not formed by FSC, though he noted the two organizations often worked toward the same goals. "It's really sad when we cherry-pick facts to create a certain narrative against the inclusion of all the facts and all the science," Leue stated, referring to the "facts" which Cohen had related to the Board, particularly regarding the prevalence of gonorrhea, which he said the industry is well aware of and takes steps to control through testing and education. However, he said, FSC and the industry in general look forward to working with the Board to "better understand and better develop a form of conversation and communication to address compliance and healthy options that may be available under the current regulations for distribution, education and outreach to the stakeholder community, which does present opportunities to understand the unique nuances within our industry and to effectively approach them. … We care deeply about the safety of our workers … and support the most effective measures." He said he welcomed continued conversations with the Division and the Standards Board to "keep our workers as safe as we want them and need them to be." FSC supporter Kevin Bland spoke briefly, thanking the Board for its attention to adult industry issues, and noting that this was only the second time in his career where he'd seen such a large body of affected workers, who had previously avoided getting involved in such matters, gaining a voice and speaking fervently and eloquently about their concerns. Next at the rostrum was AHF attorney Suzanne Maria, who'd been instrumental in the Prop 60 fight, who said she was encouraged in hearing that both sides of the controversy had expressed a willingness to work with and collaborate with the Division to come to a consensus. However, she said the adult industry suffers from a lack of OSHA inspectors visiting sets and issuing citations to producers who "choose to do business by not complying" with existing regulations and "expose workers multiple hours per day to the kinds of diseases" covered by the bloodborne pathogen standards. Maria also dismissed performer concerns about agency over their own bodies, stating that it was the employers' job to protect them "from the known hazards in the jobs that they do." Maria also called on the industry to share data obtained through its testing with the Division, so workers would know "to what extent the testing works and doesn't work, and how many people are participating and so on." "I have to say, and you've heard it before, unfortunately, the 14-day testing protocol doesn't really meet the need of the performers," she claimed. "It works in some regards, but much more can be done." She also dismissed the idea that mandatory condom use would force the industry out of California, but she expressed hope that conversations such as the ones taking place today would lead to a system that both the adult industry and AHF could support. "It's encouraging that so many people are so interested in the topic," she concluded. "The unfortunate thing is, the industry has new performers coming in every day who really don't understand their rights, don't know what protections are available other than what they've been told by the industry and who are infected and, as one witness already said, it changes the trajectory of your life." The final speaker was once again Mia Li, who wanted to make sure the Board understood, when crafting its regulations, that many performers are independent contractors, and some are even husbands and wives or in other types of monogamous partnerships, and that to require them to use condoms when performing with each other is a violation of their marital rights. "Our work is very personal, very intimate," she said, "and to criminalize the intimacy of a married couple and potentially drive underground an industry where it's already so difficult for us to speak up for ourselves, I believe that is problematic." After all those who wanted to speak to the adult issues had been heard, the Board went on to other business, but shortly before the meeting adjourned at about 1 p.m., Chairman Thomas stated that the Board would not be acting on either of the adult industry-related petitions that were before it at this time. Immediately after the meeting, the Free Speech Coalition (FSC) issued a press release stating its interpretation of Cal/OSHA's current position, as follows: "The Cal/OSHA Division announced today that it will discontinue the rulemaking process for workplace safety regulations specific to the adult entertainment industry, and focus instead on interpretation, education and outreach. In making the decision, Cal/OSHA drew on the success of the industry’s current safeguards, the non-employee status of adult film performers, and the uniqueness of the industry. "Rather than prioritize barrier protection like condoms and goggles, Cal/OSHA will instead focus on a 'hierarchy of controls,' a national occupational safety protocol that stresses elimination and isolation of hazards over “personal protective equipment. "Cal/OSHA will update language on its website to help clarify workplace issues and their relationship to existing OSHA regulations. While the language and guidelines are still in process, the site lists condoms and gloves as one of a number of possible workplace controls, including testing and ejaculation outside the body, that could prevent exposure. “'We thank Cal/OSHA for bringing adult performers and other stakeholders into the discussion during this long process, and are eager to work with them to determine how to best interpret existing guidelines,' said Eric Paul Leue, Executive Director of the Free Speech Coalition. 'I think Cal/OSHA realized that simplistic solutions and one-size-fits-all regulations do not work in an industry that is as diverse, entrepreneurial and safe as adult entertainment.' "Under the industry’s PASS protocol, adult performers are tested every fourteen days for a full slate of STIs, and there has not been a transmission of HIV on a PASS-compliant adult set since 2004. "In 2016, Cal/OSHA Standards Board declined to adopt industry-specific regulation which would have mandated condoms, goggles and dental dams. "Cal/OSHA is now emphasizing that adult performers and producers do not necessarily have an employee/employer relationship, which may give adult workers more freedom in how they perform their jobs. Adult performers have long maintained that they are contractors, not employees, and thus deserve more flexibility and control over their bodies. “'Regulation 5193 was designed for medical settings, and no one would confuse an adult set with an emergency room.' said Leue. 'The decision not to write specific regulations, but instead focus on the hierarchy of controls speaks to the efficacy of our current safeguards, and the need for flexibility. Now begins the process of working with Cal/OSHA collaboratively to find effective solutions.'"