"Exceptions and loopholes" plus lack of meaningful enforcement render totally insufficient a new emergency standard proposed by California’s Occupational Safety and Health Standards Board to protect farm and other outdoor laborers from death or injury due to extreme heat. The proposal from the Schwarzenegger administration only underscores the state’s failure to provide an effective system protecting the workers upon whom California’s huge agricultural industry depends, a team of legal groups charged today.
In public comments made in Los Angeles and Sacramento, attorneys from the ACLU of Southern California and the law firm of Munger, Tolles & Olson LLP joined representatives of the United Farm Workers of America and field laborers in calling on Cal/OSHA to make crucial modifications to regulations requiring shade and water for workers, and to focus on preventing and correcting violations by employers.
“We’re glad the state has finally acknowledged the urgent need to act. But today’s announcement is just a baby step that won’t increase worker protection,” said Catherine Lhamon, assistant legal director for the ACLU of Southern California. “Years of farm worker deaths and injuries from the heat show that what we need are regulations without exceptions and loopholes, and strong enforcement, not minor changes to a broken system that employers already flout with impunity.”
“Cal/OSHA must cut out the exceptions and loopholes now, and focus on investigating employer compliance, imposing fines and other sanctions where appropriate, collecting fines that have been levied, and creating a role for workers in seeing that regulations are enforced,” Lhamon added.
In recent weeks, in advance of California’s withering summer heat, Cal/OSHA discovered a disturbing number of employers were not complying with the 2005 regulations. However, the agency’s proposed solution is totally insufficient. Among other things, it is full of exceptions and vague language, allowing employers to comply with high-heat procedures only “to the extent practicable,” for example, and enabling them to not provide shade when doing so would be “infeasible.”
In addition, the proposal states that a shaded area must be provided no more than five minutes’ walk away for all workers when temperatures exceed 85 degrees F. But shade that is five minutes’ walk away would require workers — who are often paid by peace rate based on the amount they produce — to take repeated breaks of at least 15 minutes throughout the day. In other words, they would lose pay as they walk back and forth between shaded areas and work sites in the full summer heat.
Heat-related illness and deaths are a threat every year in California’s agricultural fields, where hundreds of thousands of farm workers labor in temperatures that regularly exceed 100 degrees as they help produce and harvest crops that feed consumers from Malibu to Massachusetts. Eleven workers have died of heat-related causes since new state regulations became effective in 2005, with six workers dying last summer alone.
Among the latter was Audon Felix Garcia, 42, who died after spending hours loading grape boxes into a truck in 112-degree weather in Kern County. An ambulance was called to his work site, but he could not be revived. His core body temperature was 108 degrees when he died.
Farm workers, like all workers in California, are entitled under the state Constitution to a comprehensive workplace safety system that protects them from injury and death. Similarly, farm workers and all other California workers are statutorily entitled to Cal/OSHA enforcement of health and safety regulations. But the rampant failures of that enforcement are well-documented and longstanding.
“It’s time for all Californians to let the state know that worker safety is a basic human right that can truly be protected only through better enforcement and regulations, including incentives for employers to comply,” said Brad Phillips, an attorney with Munger, Tolles. “We’ve been asking the state for some time to take immediate action, and we continue to hope that resolving this issue in the courts won’t be necessary. However, we’re prepared to go to court if that’s what is necessary to achieve a system that truly safeguards farmworkers and others who work outdoors.”
Employers routinely avoid paying fines levied against them for violations because the state fails to ensure that the fines are paid. And fines imposed – even in cases of worker heat-related death – have been as low as $250.
“Six farm workers died of heat last summer, and similar numbers of farm workers died in 2005,” said Arturo S. Rodriguez, president of the United Farm Workers of America. “The changes the governor is proposing would not have saved any of the people who died last summer. The UFW has decades of work on behalf of farm workers, which gives us practical understanding of the tools farm workers need to survive the conditions they are too frequently made to endure. We know the most meaningful worker protections are accomplished when workers themselves ensure their employers honor state and federal protections by having a voice on the job through union contracts.”