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The Burden of Heat Illness On The Wrong Player

Posted on Nov 4, 2009
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A San Diego Union-Tribune article about heat regulations in California workplaces, particularly farms and construction sites, struck a chord with the Worksafe team.

To prevent unnecessary tragedies, Worksafe recommends a comprehensive standard that requires the employer to provide breaks before symptoms occur (which may impair a worker's ability to think clearly and request a break) and does not require the worker to request a break.

The employer could use simple tools such as the Heat Index pen to check temperature and humidity, with a factor for direct sun exposure added, and follow Cal/OSHA recommended rest break schedules.

Heat Regulations Tough to Enforce

Standards are too vague, critics say

By Leslie Berestein
Tuesday, September 29, 2009

As the heat of summer drew out into early fall last week, state worker safety inspectors fanned out across California's farms, fields and construction sites to check for violations of the state's heat illness prevention regulations.

California was the first state in the nation to adopt such regulations, and the number of inspections conducted per year has risen from just more than three dozen in 2005 to nearly 2,500 this year, with violations and fines going up accordingly. However, the standards are still too vague to be easily enforced or offer real protection to outdoor workers, critics say, particularly those who toil in agricultural jobs.

Farmworker advocates complain that the onus is on workers to ask for rest and shade when temperatures rise, while growers say the ill-defined regulations lead to arbitrary violations.

Two attempts to introduce emergency regulations were voted down this summer by the standards board of the state's Division of Occupational Safety and Health, or Cal-OSHA, which oversees worker safety. The board has now posted proposed formal revisions with a 45-day public comment period ending Oct. 15 and a formal hearing process afterward. But by then, the fall harvest and the heat will have long passed.

“We were trying to get something in effect for this summer's heat,” said Dean Fryer, a spokesman for Cal-OSHA. “We were unable to do that. Now, we're trying to get something in place for next summer.”

In late July, the United Farm Workers of America, several farmworkers and relatives of deceased workers joined with the American Civil Liberties Union to sue the state in an attempt to prompt action on the regulations. The complaint also alleged weak enforcement and insufficient punitive follow-through — including collection of fines — after an employer is found in violation.

At least 11 agricultural workers are known to have died of heat-related causes in California since 2005, according to the United Farm Workers. Eight farmworkers died in the summer of 2008, according to the UFW complaint, among them a 17-year-old woman who was pregnant when she died in Merced County.

According to the suit, the grower she was working for had been fined for safety violations two years earlier, but the fine was never collected, nor was compliance verified.

The state agency has no heat-related deaths on record this year, Fryer said, and the only recorded incident of heat illness so far this year in San Diego County has involved a firefighter.

Last week, while conducting worker outreach at an herb farm in Oceanside, near Bonsall, Yolie Rios of California Rural Legal Assistance's Oceanside office checked the air temperature.

“I took my thermometer with me, and it read 97 degrees,” said Rios, a community worker with the organization who scouts for possible violations to report to the state. “The more inland you go, the hotter it gets.”

The regulations call for access to potable drinking water and shade for workers, as well as training on heat-illness prevention and recognition for workers and employers. However, while workers feeling heat exhaustion are to be provided with shade and a rest period, it is up to the workers to speak up.

“We know that most farmworkers are low-wage workers,” said Michael Marsh, the Salinas-based director of the rural legal group's agricultural worker health project. “Many are undocumented, and many have few job opportunities outside of agriculture. So they are very reluctant to stick their necks out and say, ‘I need a rest.’ The burden is placed on the wrong player.”

A sticky point in the suggested revisions is a trigger temperature, at which point employers must have shade available for workers needing to rest. Some Cal-OSHA board members are pushing for lower temperatures than others. While most heat-related fatalities occur at higher temperatures, heat illness and even death can occur at temperatures as low as 75 degrees, Marsh said.

At present, the suggested trigger temperature is 85 degrees, at which point employers would be required to have shade erected and ready for workers that could accommodate at least 25 percent on the shift at any one time. If workers requested shade at a lower temperature, employers would also need to provide it.

High-heat provisions requiring additional protections for workers, including observing workers for symptoms of heat illness, would kick in at 95 degrees.

Jason Resnick, assistant general counsel for the Western Growers Association, which represents farms in California and Arizona, said the industry is not opposed to the proposed revisions. However, there needs to be consistency in enforcement, he said.

“In the view of one inspector, one will say there should be shade up when it is 75 degrees or 85 degrees, and there is tree shade right there,” Resnick said. “One inspector might find that to be a violation when another says there is plenty of shade . . . We'd like to have some specificity.”

Even if the regulations are tightened, how to enforce them remains an issue. Cal-OSHA employs about 200 inspectors, Fryer said. Heat waves will often trigger sweeps, but investigations are more often prompted by tips, including from organizations such as California Rural Legal Assistance.

According to the lawsuit, California has more than 1 million workplaces.

Fryer stressed the importance of educating farmworkers and their employers, outreach that is done through farmworker organizations and other groups.

Still, in a place like San Diego County, which has more than 6,600 farms, it's impossible to know what is going on everywhere, Rios said.

“We can't be at every field when it is that hot,” she said during last week's heat wave, when she spotted a shade structure taken up by a table, with no room to sit. “I'm sure there are a bunch of violations we are not ever aware of.”

This article can be read here.

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