Condoms for PPE

Condoms for PPE

I have a sense of humor. Just look at this topic. As funny as this topic seems, it also has some deeper implications. I am all for safety, and I take the protection of employees, not just mine but all employees very seriously. But more important is our Constitution. 

First and foremost, we must protect the Constitution. Without it our workplaces will resemble the (former) Soviet Gulags (forced labor camps). Safety will become a moot point. 

Do not say it can't happen here, just look at Russia, Egypt, Equatorial Guinea, and Belarus TODAY! (If you do not believe me, see: "Top 6 The Most Severe Human Rights Violations Around the World.")

I am NOT saying that these actors (workers, employees, etc.) do not deserve a safe workplace, I just do not know if this is something that can be enforced due to conflicts with the Constitution.  I also do not have a definitive answer either.

After you read the article, see my commentary at the end as to the Constitutionality of this.

Let us look at the situation as a risk manager/safety manager:

 Analysis:

OSHA (and Cal/OSH by nature of being subject to Federal OSHA as a minimum standard) has a standard for controlling hazards.

1. Engineering Controls: First, if feasible, remove the hazard or enclose the hazard.
2. Administrative Controls: Next,use measures (other than Engineering Controls) aimed at reducing employee exposure to hazards.
3. PPE: The last option.

Recommendations:

It seems that everyone is forgetting Engineering Controls and Administrative Controls. 

Better testing. This can be considered both an Engineering Control (removing the hazard, i.e. the infected actor) and an Administrative Control (setting a better time table for testing and testing with a quicker turn around time). The system needs to be formalized and accessible so that employers (production companies) and other actors can be sure that the actors have met the requirements. (Note: I realize there are privacy concerns, I not that, but this is a recommendation, not the final written program.)

You also have to look at the condition "if feasible." Is the consumer looking for "safe sex" porn, or do they want something raunchier? 

  

Theatrical bodily fluids. This can be considered both an Engineering Control. The dirty little secret in this industry is that some production companies "enhance" scenes by using (additional) bodily fluids. Think of how cereal companies add white glue (paste) to milk in their product pictures to make them look more appetizing (See: National Geographic's Food that Fools You). 

Vaccinations before the fact. This will prevent infection if an exposure occurred. The system needs to be formalized and accessible so that employers (production companies) and other actors can be sure that the actors have met the requirements. (Note: I realize there are privacy concerns, I not that, but this is a recommendation, not the final written program.)

More education and more training. Can you really ever have enough.

You may think that examining this issue is ludicrous, but as a safety professional you may encounter situations out of the norm. Being able to analize situations like this in a responsible and professional manner, using best practices prepares you for the unexpected that you may encounter.

Now on to the article:

AHF: Cal/OSHA Fines Streamray Studios $28K for No Condoms, Other Safety Issues

On January 10^th, OSHA officials issue multiple safety citations to Chatsworth-based Streamray Studios, Inc., which produces work for Penthouse, for failing to follow workplace safety regulations, including failure to "…ensure use of appropriate personal protective equipment, such as…condoms…"The OSHA citations came about after stepped up inspections following an outbreak of syphilis, a highly contagious but curable STD, shut down the entire adult industry for several weeks last summer. Inspections at Streamray occurred on or before October 4th and October 17th 2012.
curable STD, shut down the entire industry for several weeks last summer

AIDS Healthcare Foundation (AHF) has learned that Cal/OSHA (California's Department of Industrial Relations, Division of Occupational Safety and Health), the state's health and safety regulatory and watchdog organization, issued multiple workplace safety citations to Chatsworth-based adult film production company Streamray Studios Inc., including several for failing to follow workplace safety regulations, including for failure to "…ensure use of appropriate personal protective equipment, such as…condoms…"

The OSHA citations came about after stepped up inspections following an outbreak of syphilis, a highly contagious but curable STD, shut down the entire adult industry for several weeks last summer. Inspections at Streamray occurred on or before October 4th and October 17th 2012.

On January 10, 2013, officials from the High Hazard Unit of Cal OSHA issued seven (7) citations ranging in degree from general to serious to Streamray. Three (3) of the seven dealt specifically with condom use and availability (or lack thereof) and/or safer sex practices among the adult film performers, including a citation for failure to 'write, establish, implement, and/or maintain an Injury and Illness Prevention Program (IIPP) which met the requirements of this standard for their employees who were exposed to hazards including but not limited to sexually transmitted illness in the course of producing adult videos. The seven citations resulted in financial penalties or fines totaling $28,460, of which $14,175 of the fines were specifically issued for lack of condoms on set, lack of an Injury and Illness Prevention Program (IIPP) and Exposure Control Plan.

"Streamray now joins the ranks of a growing list of adult film producers and distributors cited by Cal/OSHA for failing to properly follow workplace safety regulations on their adult film sets with regard to condom use and other safety precautions, cited specifically under Cal/OSHA's Bloodborne Pathogens Program, Personal Protective Equipment guidelines—i.e. for failing to use condoms or other barrier protection," said Michael Weinstein, President of AIDS Healthcare Foundation. "What is particularly heartening about these Streamray citations is that OSHA issued these citations alongside other citations for far more mundane violations—breakers in an electrical panel not being properly labeled, or for a table saw that did not have the proper guards and safety devices attached. In short, OSHA has normalized and incorporated the condom and bloodborne pathogens citations as a routine part of a whole battery of potential violations that an employer or workplace could face. We thank Cal/OSHA for stepping up to enforce regulations designed to protect the workplace safety of adult film workers at Streamray and other adult film producers in California."

Background on AHF's Adult Film Worker Safety Efforts

In November 2012, Los Angeles County voters passed Ballot Measure B, the County of Los Angeles Safer Sex in the Adult Film Industry Act. Measure B is the so-called condoms in porn measure spearheaded by AIDS Healthcare Foundation (AHF) with an overwhelming margin of voter support—57% to 43%.

Earlier last year, the City Council adopted the 'City of Los Angeles Safer Sex In The Adult Film Industry Act,' 'which conditioned the issuance of City of Los Angeles film permits to adult film producers to condom use in the subsequent adult films shot and produced in Los Angeles. AHF had first introduced the item as a proposed City ballot measure; however, City Council—anticipating that the measure would likely have passed—voted instead, as permitted by law, to adopt that measure outright in an 11 to 1 vote.

Both the City and County measures were initially spearheaded by AHF and members of the advocacy group, FAIR ('For Adult Industry Responsibility'), after as many as 22 HIV infections believed to be industry-related were reported in several outbreaks in Los Angeles since 2004, and amidst thousands of sexually transmitted infections (STIs) occurring annually among adult performers.

About AIDS Healthcare Foundation
 
AIDS Healthcare Foundation (AHF), the largest global AIDS organization, currently provides medical care and/or services to nearly 200,000 individuals in 28 countries worldwide in the US, Africa, Latin America/Caribbean, the Asia/Pacific Region and Eastern Europe. To learn more about AHF, please visit our website: www.aidshealth.org.  

My commentary on the Constitutionality of Cal/OSHA's condom requirement:

The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law "respecting an establishment of religion", impeding the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering with the right to a peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.

Pornography fits under freedom of speech and freedom of expression (which includes sexual expression).

The Supreme Court ruling in California VS Freeman in 1989 legalized pornography. (With the state's definition of what pornography)

Our 1st Amendment also states that: "federal and lower government may not apply 'prior restraint' to expression with certain exceptions such as national security and obscenity."
The production of video has been held that just as (painted) artwork, it is a form of expression.

Prior restraint or prior censorship is censorship in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known. Prior restraint prevents the censored material from being heard or distributed at all; other measures provide sanctions only after the offending material has been communicated, such as suits for slander or libel.

So if Cal/OSHA is forcing the use any and all types of barrier protection, how is that not censoring people from being able to truly express themselves sexually? 

Final Thoughts: 

This also demonstrates that "Safety" and what we do does not exist in a vacuum. It exists in the world. There are other forces that may override safe work practices. Most of these are Constitutional Rights.

Consider other rights other than the freedom of expression: ADA (Americans with Disabilities Act), and the EEOC (Equal Employment Opportunity Commission) just to name two. Would you ever not hire someone because of their gender, because they appeared to be a foreigner, or because English was a second language?

Many times I examine the extreme. If you can handle these situations that I present, you might learn something and will definitely be able to handle the "normal" day-to-day.

Just remember, for any PPE, you must wear (use) it correctly for it to work and protect you.