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Chapter 10. Laws and Regulations

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					                  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.

				
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