There seems to be a disagreement amongst producers, performers and even testing facilities as to when adult studios can resume production. The Free Speech Coalition continues to state that all adult productions are on a hold while many states attempt to slowly reopen their societies. Their decision has been backed by one of the Free Speech Coalition’s largest financial supporters, Mindgeek – ie., Brazzers and Pornhub. While, on the other hand, Talent Testing Services and Sixto Pacheco, the owner, has added COVID-19 testing to the performer panel test through-out the United States. Thus, hinting that with a full panel testing including that for COVID-19, studios and content creators can get back to making pornography with one of their tests.
Obviously, I am not a doctor and I will not comment on whether shooting now or later is the best course of action. Nor will I comment on what are the best practices to return to shooting. However, I will comment on what may be your or your company’s liability if one of your performers or crew are infected while on your set.
Obviously, everyone wants to be as careful as possible when production does resume. One of the most important ways you can protect yourself as well as your performers and crew is to have workers compensation insurance.
If you decide to resume production prior to California lifting their “State of Emergency” declaration (or have already done so), and someone on your set contracts COVID-19, from anywhere – not just your set, you might be forced to accept their infection as a work related injury. On May 6th, Governor Gavin Newsom issued this Executive Order for the State of California. It reads in relevant part;
IT IS HEREBY ORDERED THAT:
- Any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if all of the following requirements are satisfied:
- The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;
- The day referenced in subparagraph (a) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020;c.The employee’s place of employment referenced in subparagraphs (a) and (b) was not the employee’s home or residence; and;
- Where subparagraph (a) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.
- The presumption set forth in Paragraph 1 is disputable and may be controverted by other evidence, but unless so controverted, the Workers’ Compensation Appeals Board is bound to find in accordance with it. This presumption shall only apply to dates of injury occurring through 60 days following the date of this Order.
The full text can be found here:
As a business you can rebut the presumption that COVID-19 was transmitted on your set. However, if you do not have workers’ compensation insurance, you will need to hire your own lawyers, as well as pay medical professionals to review medical records as well as perform an examination of the person who has alleged that they were infected on your set. This will cost tens of thousands of dollars in legal and med-legal fees.
If you believe that you will be protected by defending such a lawsuit through the claim that the performer or crew member was an independent contractor – it is likely that will no longer be successful. With the passage of California Assembly Bill 5, performers and or crew will most certainly be determined to be your employees.
If you do not have workers compensation insurance, it is highly recommended that you contact a commercial insurance broker to obtain the necessary insurance in California. If you produce outside of California, the Emergency Order above only applies to California employers. However, it is possible that your state of Governor has implemented a similar Order. Or, in the alternative, without such an Order, a performer or crew member that is infected while on your set could still be determined to have a work related injury.
Please seek the appropriate legal counsel.
