CHAPTER 10. LAWS AND REGULATIONS A wide variety of federal, state and local agencies administer laws and regulations on health and safety that apply to motion picture and television production. In addition, in case of accident, various parties can be subject to lawsuits if negligence is involved. This chapter will discuss the most important of these laws and relevant government agencies. OSHA Employers are required by the federal Occupational Safety and Health Act of 1970 (OSHAct) "to ensure as far as possible every working man and woman in the Nation safe and healthful working conditions". The Occupational Safety and Health Administration (OSHA), a federal agency, has the responsibility for administering OSHAct, issuing standards on health and safety, and carrying out inspections to enforce the regulations and law. OSHA can fine employers who do not comply. Coverage of OSHAct applies to all private employers and their employees in the 50 states, the District of Columbia, Puerto Rico, and all other U.S. territories. In 23 states with OSHA-approved state plans, OSHA has delegated its authority to enforce OSHAct. Once federal OSHA has adopted a regulation, these states must adopt a comparable standard within 6 months of the publication date of a final standard. These states include: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming. Rights and Responsibilities Under OSHAct, employers are responsible for keeping a hazard-free workplace, knowing and obeying OSHA standards, informing employees about OSHA and their rights, keeping appropriate records, informing OSHA of fatalities and 5 or more injuries requiring hospitalizations, posting citations, and abating citations. Employees are responsible for following employer health and safety rules and OSHA standards, wearing required personal protective equipment, reporting hazardous conditions and accidents to their supervisor, and cooperating with OSHA compliance officers. Employees have the right to see copies of applicable OSHA standards, to request information on hazards and precautions, to request OSHA to make an inspection if it is believed there are hazardous conditions or violations of OSHA standards, to have his or her name kept confidential when filing an OSHA complaint, to have an authorized employee representative present during inspections, to have access to monitoring and medical records, and to not be discriminated against for exercising these rights. OSHA Standards The general duty clause of OSHAct states that each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." This general duty clause can be used by compliance officers when there is no specific OSHA standard. OSHA also promulgates and enforces specific health and safety standards. Depending on the situation, different OSHA categories of standards could apply. If large scale work is done (e.g. constructing a multistory building), then the OSHA Construction Standards (CFR 1926) would apply. Otherwise the OSHA General Industry Standards (CFR 1910) apply. OSHA standards cover such areas as emergency plans, fire safety, machine guarding, flammable and combustible liquids, spray finishing, welding, sanitation, toxic and hazardous substances, etc. Many of the hazards in motion picture production would not be covered by OSHA standards. In such instances, the general duty clause would apply. Note that CalOSHA (the California state OSHA plan) has regulations requiring that employers have a written Injury and Illness Prevention Program. This program must have the following elements: * Identification by name of persons responsible for the program; * A system for ensuring employee compliance with the program; * A system to ensure communications with employees about health and safety issues (e.g., a labor/management health and safety committee); * A system and procedures, including periodic scheduled inspections to identify health and safety hazards; * A procedure to investigate occupational illnesses and injuries; * Procedures for correcting unsafe or unhealthy conditions, work practices, and work procedures; * Safety and health training for employees and supervisors; and * Record-keeping and documentation of the program. In addition, CalOSHA considers motion picture production a high hazard industry. OSHA standards are available from local OSHA offices (see Appendix 1) Toxic and Hazardous Substance Standards Subpart Z - Toxic and Hazardous Substances of the OSHA standards lists the Permissible Exposure Limits (PELs) for several hundred chemicals (CFR 1910.1000). These PELs were recently revised, mostly to reflect changes in the Threshold Limit Values (TLVs) of the American Conference for Governmental Industrial Hygienists. Prior to this revision, most PELs were based on 1968 TLVs. The PELs are legal standards. TLVs are defined as "airborne concentrations of substances and represent conditions under which it is believed that nearly all workers may be repeatedly exposed day after day without adverse effect." One problem with TLVs for many chemicals is that the manufacturers of those chemicals had a major say in the TLV development. As a result there is considerable controversy over the adequacy of the resulting TLVs. In addition, they do not protect sensitive workers. In order to apply the numerical TLVs (or PELs), there must be air sampling to determine the concentration in air of that chemical. In addition to the PELs, Subpart Z has specific standards for many hazardous substances, including asbestos, lead, cadmium, formaldehyde, and many other carcinogens. Hazard Communication Standard The OSHA Hazard Communication Standard applies to all employees in the United States who are exposed or potentially exposed to hazardous substances at their workplace. The purpose of the hazard communication rule is to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees by means of comprehensive, written hazard communication programs. Such hazard communication programs must include container labeling and other forms of warning, material safety data sheets and employee training. Inspections OSHA has the right to inspect any workplace without advance notice. There are several types of inspection: 1) imminent danger; 2) fatality and multiple injuries; 3) valid employee complaints; 4) special emphasis programs (targeted at high risk industries); and 5) random inspection programs. The OSHA inspector can issue citations and penalties for violation of OSHA standards. These citations usually give an abatement date for correction of the violations. The size of the penalty depends on the seriousness of the violation, which includes de minimis, nonserious, serious, and imminent danger violations. The citation and penalty (or lack of same) can be appealed by the employer, employee or union. Record-keeping and Reporting OSHA requires that all employers keep records of occupational illnesses and injuries resulting in death, one or more lost workdays, restriction of work or motion, loss of consciousness, transfer to another job, or medical treatment (other than first aid). Each such injury or illness must be recorded on OSHA No. 200 - Log and Summary of Occupational Injuries and Illnesses and on OSHA No. 101 - Supplementary Records within 6 days. By February 1 of each year, the employer must fill out and post for at least 30 days the summary part of OSHA No. 200. As of 1991, motion picture production is excluded from this reporting, except in California. If an on-the-job accident results in the death of an employee or in the hospitalization of 5 or more employees, all employers must report the accident in detail to the nearest OSHA office within 48 hours. Voluntary Compliance Program OSHA funds a voluntary compliance program, usually operated by the state departments of labor. Under this free program, a voluntary compliance officer will conduct an inspection of the workplace at the request of the employer, and make recommendations for correction of any hazards. As long as the employer is working with this program, OSHA will not make an inspection. The voluntary compliance program does not report to OSHA any violations found, except in cases of imminent hazard which could involve death or serious injury. Appendix 2 lists the voluntary compliance offices in each state. NIOSH The National Institute for Occupational Safety and Health (NIOSH) was established by OSHAct to conduct research on occupational health and safety, to provide technical assistance to OSHA, and to recommend standards for OSHA to adopt. NIOSH can make workplace investigations as part of this research. It can require that employers measure their employees' exposures and provide medical examinations of employees (at NIOSH expense). NIOSH also certifies respirators. NIOSH provides technical assistance to employers and employees. Employers or three or more employees can request a Health Hazard Evaluation if they suspect that health hazards exist in the workplace. NIOSH will come in and conduct any air monitoring and medical examinations necessary. In addition, employers can request a Technical Assistance inspection, which is a more limited version of the Health Hazard Evaluation. NIOSH also provides information to employers and employees upon request and has a wide variety of literature. See Appendix 3 for a list of NIOSH offices. WORKERS' COMPENSATION LAWS Most employees in the United States are required to be covered by state workers' compensation laws. These laws provide a variety of benefits for job-related injuries and illnesses, including benefits for medical expenses, wage replacement, loss of limbs (or their use), rehabilitation and survivor's benefits in case of death. These laws vary from state to state. Workers' compensation is a "no fault" insurance system, meaning an injured employee can collect without having to prove it was the employer's fault. In addition, the injured employee can collect benefits even if the injury was his or her fault. In return, the employer is protected from lawsuits for negligence. Thus workers' compensation is the sole remedy for injured employees with respect to their employer. (See the section on Liability for information on lawsuits against other parties besides the employer.) What Is Covered? Injuries are covered under workers' compensation if they are job-related. The usual requirements are that the injury result from an accident arising out of and in the course of employment. The actual injury does not have to occur on the job site. For example, a car accident on the road during a delivery for the employer would be covered. Accidents occurring during travel to or from a remote filming location might be covered, depending on the state. Occupational illnesses may also be covered. The extent of coverage and what illnesses are covered varies widely from state to state. In New York State, the illness does not have to be solely caused by something on the job, but the job has to substantially contribute to the illness. A classic example of a compensable occupational illness is contact dermatitis from exposure to chemicals. There are usually statutes of limitations for filing claims for occupational diseases. In New York State, a worker may file a claim for up to 2 years after becoming aware that the disease was caused by the job. Illnesses may also be covered under workers' compensation if they would only occur because of the nature of the job. For example, a heart attack that occurred while filming in the desert might be compensable if the heat was a primary factor. An injured employee has the right to file a workers' compensation claim with the state workers' compensation board if he or she thinks the injury is work-related, whether or not the employer agrees. If the employer does not think the injury or illness was work-related, then the employer can challenge the claim. Insurance Carriers There are a variety of ways to be covered under workers' compensation: private carriers, state funds, and self-insurance. State laws vary widely in the types of carriers permitted. Some states have an exclusive state fund, which is a non-profit agency that provides workers' compensation insurance for employers. Other states allow private insurance companies (e.g. Travelers, Fireman's Fund, Liberty Mutual) to provide workers compensation and have non-exclusive State Funds which must provide coverage to employers. New York State allows private carriers, and has a State Insurance Fund. Large employers often have self insurance, meaning they cover themselves for workers' compensation benefits. Of course, these plans have to meet state regulations. The premiums for workers' compensation insurance is paid entirely by the employer. The premium size depends on the company's experience rating. This depends on the number of workers' compensation claims that have been filed by the company and on the average for the industry. FIRE PREVENTION LAWS Most fire codes and building codes do not have specific sections regulating motion picture production. In most instances, standard regulations are applied. There are a number of authorities regulating fire hazards at the federal, state and local levels. OSHA As mentioned earlier in this chapter, OSHA has a number of regulations concerned with fire prevention. If a state has an approved state plan, then OSHA regulations are enforced by the state. The relevant regulations in the Occupational Safety and Health Standards For General Industry, 29 CFR Part 1910 are: CFR 1910.38 Employee emergency plans and fire prevention plans. CFR 1910.101,102,104. Compressed Gases, Acetylene, Oxygen. CFR 1910.106 Flammable and combustible liquids CFR 1910.107. Spray finishing using flammable and combustible liquids CFR 1910.157 Portable fire extinguishers CFR 1910.158 Standpipe and hose systems CFR 1910.159-163. Fixed extinguishing systems CFR 1910.164,165. Fire detection and employee alarm systems CFR 1910.252. Welding, cutting and brazing. CFR 1910.307. Electrical-Hazardous (classified) locations State and Local Fire Regulations Most states do not have specific fire regulations, but some provide uniform guidelines for local fire departments. In California, the California State Fire Marshal has developed and published the Film Industry Fire/Life Safety Handbook. This provides excellent guidelines which can be adopted by local fire departments. These guidelines could also be applied in other states. Municipalities and counties, however, normally promulgate and enforce fire regulations. Local fire departments issue needed permits. They can inspect the site for fire and life safety hazards, including emergency escape for employees and public, operation of fire protection systems, fire department access to buildings, use of flammable liquids and gases, pyrotechnic special effects, etc. (Chapter 5 contains a fire/life safety inspection checklist of possible hazards on the location.) The fire department also can carry out periodic inspections. Local fire departments are also responsible for issuing permits for special hazards, including special effects, refuelers, tents, welding/cutting, etc. Fire departments may require standby fire personnel at all filming sites. In California, for example, reasons for requiring fire standby personnel can include presence of the public at the filming site, limited exiting, pyrotechnics special effects, use and refueling of aircraft, filming in areas of high fire risk, filming in remote areas where response time of the fire department may be too long, and tents which are occupied by 500 persons or more. The California State Fire Marshall recommends that such standby personnel should have two years' experience as a full-time firefighter, completion of a fire inspection practices course, and basic knowledge of pyrotechnics special effects laws and regulations. Insurance Policies Insurance companies will usually require that production companies meet certain minimum standards of fire protection before insuring the company. In many instances they will inspect the location before issuing a fire policy. MUNICIPAL REGULATIONS Cities, towns, counties, etc. have local laws and regulations. These can cover such areas as filming permits, traffic regulations, sanitation and other health requirements, use of firearms, air pollution, building codes, etc. Many of these regulations are enforced by the police departments or similar public safety organizations. Others may be enforced by various city agencies, including health departments, building departments, etc. A filming crew might have to interface with several agencies to get all needed permits. In many instances, cities and states have set up special film commissions to help with the various permits needed. An example is New York City's Mayor's Office of Film, Theater and Broadcasting. CIVIL LIABILITY Many lawsuits have occurred as a result of serious injuries and fatalities resulting from motion picture production. These lawsuits claim negligence on the part of one or more individuals or companies, which resulted in the injuries. Many such lawsuits have resulted in multimillion dollar awards or settlements. The awards are for conscious pain and suffering, medical expenses, lost past and future earnings, and, in some cases, for punitive damages. The increasing number of such lawsuits due to escalating numbers of injuries has resulted in drastically increased insurance premiums. Who Can Be Sued? As discussed above, if an employee is injured on the job, he or she cannot sue the employer (or other employees) - even if their negligence caused the accident, since workers' compensation is the sole remedy for employees. The injured employee, however, can sue independent contractors (individuals or companies) whose negligence was a cause of the accident. For example, in injuries involving stunts or special effects, an injured performer or camera operator might be able to sue the special effects coordinator, stunt coordinator, and director since they are usually independent contractors in motion picture production, but could not directly sue the production company (their employer). As a corollary, an independent contractor (e.g. a stunt coordinator) who is injured can sue the director and producer (or their companies). Therefore, in determining liability, an important question is who is the employer, and who is an employee or independent contractor. Whether a person is an independent contractor or employee does not depend just on how he or she is paid. The crucial test is the degree of control the individual has over the details of his or her work. For example, a director who has complete control over how the film is made, including timing, locations, choosing personnel, etc. is an independent contractor. Similarly, so is a special effects coordinator who brings his or her own equipment, who decides where and how everything is placed, and has his or her own assistant. A precedent that, for example, directors or producers who are employed on a film through a loan-out company may be independent contractors and not employers, was established in a 1986 California court decision involving director Hal Needham and his loan-out company Stuntman, Inc. Needham and Stuntman, Inc. were sued by stuntwoman Heidi Von Beltz, who was left a quadriplegic by a stuntcar crash during filming of "Cannonball Run" in 1980. The jury held that Von Beltz and Needham were not co-employees because the director had been employed on the film production through his loan-out company, and awarded her 4.5 million dollars for her injuries. The California Court of Appeals upheld this decision in 1988. Major lawsuits have been filed in many film accidents, including the 1989 deaths of 5 people from a helicopter accident during filming of the Chuck Norris film "Delta Force 2" in the Philippines, and the 1989 death of stuntman Clint Carpenter during filming of "Hired to Kill" in Corfu. Many other cases have been settled out of court. For example, the families of the two Vietnamese children killed in a helicopter scene during filming of "The Twilight Zone" in 1982 reportedly received two million dollars in an out-of-court settlement. CRIMINAL PROSECUTION Although rare in the past, criminal prosecutions of employers in workplace fatalities are increasing where it can be shown that the employer deliberately withheld knowledge of the hazards from employees, and refused to implement precautions. This increase in criminal prosecutions is also a result of court decisions that OSHAct does not override state criminal laws. The most famous criminal prosecution in the motion picture industry is the charges of involuntary manslaughter against Director John Landis and four associates, including the helicopter pilot and special effects coordinator, after the 1982 deaths of Vic Morrow and two children during the filming of "The Twilight Zone." They were charged with involuntary manslaughter, but were acquitted on the basis that it was an accident, and no one could have predicted the helicopter crash. With the advent of the Safety Bulletins developed by the Industry Wide Labor-Management Safety Committee, and campaigns for health and safety programs developed by unions and other organizations such as the Center for Safety in the Arts, future criminal prosecutions could focus around issues of what type of health and safety program was present, how did the producer evaluate the risks of a stunt, and what precautions were taken. REFERENCES California State Fire Marshall Film Advisory Committee. (1988). Film Industry Fire/Life Safety Handbook. California State Fire Marshall, Sacramento. Occupational Safety and Health Administration. (1989). Occupational Safety and Health Standards For General Industry, 29 CFR Part 1910. OSHA, U.S. Department of Labor, Washington. Occupational Safety and Health Administration. (1989). Occupational Safety and Health Standards For Construction, 29 CFR Part 1926. OSHA, U.S. Department of Labor, Washington.