Beyond Decriminalization: Sex-work, Human Rights and a New ...

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PIVOT LEGAL SOCIETYprovide coverage for post exposure prophylaxis for workers who may have contracted HIV in thecourse of their employment.29. Acknowledge pregnancy as a workplace risk that must be accommodated within the WCA.30. Inform sex workers, clients and employers that, in order engage in commercial sex as safely aspossible, and in order for workers to make a WCA claim, workers may be obliged to take reasonablesteps to protect their health, and the health of their clients, through the use of protectiveequipment.31. Explain disease infection disclosure requirements to workers, clients and employers.32. Do not impose mandatory HIV testing or medical certificates for sex workers, but do provide safe,easy and confidential access to testing for workers and clients.33. Engage in further consultations with sex workers on the issue of whether to enact legislationprohibiting a person from providing or receiving commercial sexual services unless he or she hastaken all reasonable steps to ensure that an appropriate barrier is used when those services involvevaginal, anal, or oral penetration, or any other activity with a similar or greater risk of sexuallytransmitted infection.34. Enact legislation to ensure that a person’s entitlement to Worker’s Compensation is not lost oraffected if he or she refuses to engage in, or refuses to continue to engage in sex work.Occupational Health and Safety Regulations35. Sex workers’ rights should be protected under occupational health and safety legislation.36. The application of any occupational health and safety regulations to sex work should be undertakenonly in careful consultation with sex workers.37. Provide sex workers with protections found in the OHSR and require that employers provide safephysical working conditions.38. Issues around drug and/or alcohol use on the job should be addressed through the leadership anddirection of sex workers.39. Educate employers about their obligation to provide personal protective equipment and adequatewashing facilities to their staff.40. Give sex workers access to educational materials and training on occupational health and safetyand involve sex workers in the creation of these materials.41. Subject employers in the sex industry to the provisions in the WCA and OHSR that obligeemployers to ensure safe physical working conditions.42. Ensure that any legislation relating to condom use enables sex industry workers and employers toestablish working conditions that support consistent condom use,43. Do not create intrusive legislation that is based on a punitive approach to sexually transmitteddisease infection.44. Consult with sex workers to develop a list of personal protective equipment items that employersmust provide to sex workers pursuant to WCA s. 115(2)(d).45. Ensure that the application of any OHSR laws to sex work is only undertaken after careful consultationwith sex workers.148
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformPART 4: Income Assistance ANDEmployment InsuranceIncome Assistance: In 2002, the Government of B.C. introduced theEmployment and Assistance Act (the “EAA”) and Employment and AssistanceRegulations (the “EAR”). Together, these statutes set out the province’swelfare program. Sex workers who participated in this project were criticalof four aspects of B.C.’s welfare legislation: the work search and employmentrelated requirements; the two-year prior work experience requirement;the declaration of income requirement; and the three-week waiting periodrequirement.Work search/employment related requirementsIn order to apply for income assistance, a person must meet a series of requirements. One of theseinvolves conducting and providing evidence of a three-week work search. The only exception to thisrequirement is if the applicant can prove that such a work search would cause undue hardship. Oncea person has completed this work search, and if they are found to be eligible for income assistance,they must agree to an employment plan setting out the basis of a continued work search.According to the EAA, if at any time a recipient of income assistance fails to accept suitableemployment, is fired from employment for just cause, leaves employment voluntarily without justcause or fails to continue searching for work, that person’s income assistance will be reduced orcancelled altogether. Because the EAA and the EAR do not provide definitions of “suitable employment”and “just cause,” it is unclear how these policies would apply if prostitution is decriminalized.For example, in a decriminalized context, it is possible that prostitution would fit the definition of“suitable employment,” and that income assistance recipients would be compelled to look for, accept,and remain in prostitution.Sex workers were asked how they felt about this possibility. Many respondents thought thatincome assistance applicants should not be compelled to accept employment in prostitution as acondition of welfare eligibility.A. I don’t think that you should be forced [to work] at McDonald’s, nor should you beforced to work as a sex worker too [in order to qualify for income assistance]. Youshould not be forced to work in sex work.- female off-street out-call sex workerAnother worker suggested that prostitution should always be a last resort, and usually is not a choicethat someone with options would make. Employment and Assistance Regulations, B.C. Reg. 263/2002, s. 3. Ibid., ss. 3(1)(a), 3(1)(b). Ibid., s. 3(2). Employment and Assistance Act, S.B.C. 2002, c. 40, s.13.149
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