Provincial and federal health and
safety legislation is designed, among other things, to protect
workers by promoting safety in the workplace to prevent injuries
and occupational diseases. These goals have expanded in recent
years to address conduct such as workplace harassment and bullying.
In traditional work settings such as industrial establishments and
offices, the reach of the law is clear.
From time to time, however, we are reminded that there are some
less "traditional" workplaces in which the application of
legislated safeguards may be less obvious.
Last month the California Occupational Health and Safety
Standards Board addressed whether more stringent safety guidelines
ought to be imposed on employers in the state's estimated $13
billion porn industry. As a result of a petition filed by the AIDS
Healthcare Foundation, changes to the California Code of Safety
Regulations designed to reduce the risk of transmitting bloodborne
pathogens such HIV and hepatitis B and C, and sexually transmitted
diseases such as herpes, gonorrhea and chlamydia, came before the
Among the proposed requirements were the mandated use of condoms
(which are currently required in Los Angeles County as a result of
an earlier measure) and other protective equipment like eye
protection and dental dams (to protect against the risk that bodily
fluids would reach the face), as well as rules regarding the
disinfection of sex "toys", general sanitation, the
handling of contaminated waste and the ready availability of
As reported in the February 18, 2016 edition of The New York
Times (Actors in Pornographic Films Fight Proposal to Enforce
Safety Regulations), the film industry "turned out in
force...to oppose" the regulations, arguing
"that wearing goggles and other types of face protection
would make their films unsellable". Four yes votes were
required of the seven member Board to pass the new standards. With
one position vacant and one member absent, a three to two vote in
favour of the guidelines was insufficient to have them passed. The
issue will come up again when the California Safer Sex in the
Adult Film Industry Act makes its way to a state-wide ballot
in November, 2016.
It is only natural that the issue of health and safety would
find its way into the adult film world. While statistics regarding
the size of the adult film industry in Canada are not readily
available, the fact that there is a burgeoning industry is clear.
As recently as 2014 the CRTC cited the Canadian specialty cable
channels AOV Adult Movie Channel and AOV Action Clips for possible
non-compliance of their licences in providing less than the
mandated 35% Canadian programming over the broadcast year and
evening broadcast period. Canadian film producers no doubt took
While the Ontario Ministry of Labour has issued safety
guidelines for film and television production, those measures are
clearly designed for mainstream film work. For example, it is
difficult to imagine that guidelines addressing
"Skydiving" or "Underwater Stunts" were
intended for the adult film industry. That said, the overriding
statutory duty of an employer to take every precaution reasonable
in the circumstances for the protection of a worker applies equally
to XXX-rated film production. Time will tell if the Canadian adult
film industry manages to attract the same attention from health and
safety officials as its California counterpart.
Our late Prime Minister Pierre Trudeau once famously said that
the state has no business in the bedrooms of the nation. The
bedrooms of the production stage may be altogether another
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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