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By Claire Carlson
Farmworkers who labor in increasingly hot conditions because of climate change will be among those who would benefit from a new federal rule covering workplace safety during extreme heat, advocates say.
The federal Occupational Health and Safety Administration (OSHA is in the process of making new standards to protect workers from heat-related stresses that can result in injury or death. OSHA published a notification about the rulemaking in October and is currently accepting public comment on the proposal through January 26, 2022.
As the frequency and intensity of extreme heat events increase and daytime and nighttime average temperatures rise, heat-related illness and death will also rise, according to the U.S. Global Change Research Program’s National Climate Assessment.
This increased risk will be particularly pronounced in rural areas, according to OSHA’s Advance Notice of Proposed Rulemaking (ANPRM) for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.
“Climate change is especially an issue in states that have high densities of agricultural workers and states that are in warm parts of the country,” said Michelle Tigchelaar, a research scientist at Stanford University who studies the effects of climate change on food systems. “And several of those [states] currently don’t have heat rules in place.”
A federal heat standard would require employers to provide heat protections for workers and to implement safety strategies when temperatures are high. This would be especially important for Black and Hispanic workers, who, according to the ANPRM, are at a higher risk of dying from heat exposure than white workers. Since 2010, one-third of recorded workplace deaths were Hispanic workers, many of whom work in the agricultural industry.
“This rate is not just because they work outdoors, but all sorts of confounding factors like poverty and migrant status and access to healthcare,” said Tigchelaar.
According to the Centers for Disease Control and Prevention (CDC), farmworkers are 20 times more likely to die due to heat stress than employees in any other industry.
Most farmworkers do not receive benefits like sick leave, health insurance, paid vacation, or overtime pay, according to Farmworker Justice. Approximately a third of farmworker families live below the poverty line, yet few receive public assistance like food stamps, unemployment benefits, Medicaid, or WIC (Special Supplemental Nutrition Program for Women, Infants, and Children).
The health hazards associated with working in the heat include heat rashes and cramps, fainting, heat exhaustion, kidney injury, and heat stroke, according to the National Institute for Occupational Safety and Health. These risks are exacerbated if a worker isn’t wearing breathable and reflective clothing, doesn’t have cool drinking water, isn’t given enough breaks, and isn’t able to cool down at home because of lack of air conditioning or other cooling mechanisms.
If employees are paid on a piece rate basis – paid by number of units produced versus amount of time spent at the job – they can be reluctant to take a break, which can worsen a heat illness.
“Many farmworkers who have mixed migration status or are undocumented don’t have access to healthcare and and oftentimes don’t use those services despite having shown symptoms or signs of heat illness,” said Ira Cuello-Martinez, policy manager at Pineros Y Campesinos Unidos del Noroeste (PCUN), a farmworker union based in Oregon. “It can be very late by the time they do seek those services.”
Farmworker advocates say that a heat standard could decrease these health and safety risks.
In Oregon, there is an effort to establish permanent state rules on working conditions during heat and wildfire smoke events. This comes after a summer of unprecedented high temperatures across the United States.
In the Pacific Northwest, two heat waves in one summer broke records and killed hundreds of people, many of them low-income, BIPOC (Black, Indigenous, or people of color), disabled, or undocumented. Among them were several farmworkers, including Sebastián Francisco Pérez, who died while working at a tree farm in rural St. Paul, Oregon.
In response, the Oregon Occupational Health and Safety office adopted a temporary emergency heat ruling in July that remains in effect until January 2, 2022. This end date cannot be extended.
The temporary ruling requires employers to provide access to shade, drinking water, heat-safety training, and an emergency medical plan when temperatures exceed 90 degrees Fahrenheit.
It also enforces a mandatory buddy system, which, for agricultural employees who work in sparsely populated areas, is an important preventive measure.
“We now know that all the workers that died in the summer’s heat wave were working alone,” said Jamie Pang, environmental health program director of Oregon Environmental Council. The nonprofit Oregon Environmental Council has been advocating for a permanent state heat stress standard in response to extreme temperatures caused by climate change.
“It is our view that we must push for as strong of rules as possible now, knowing that the worst is yet to come,” Pang said.
Advocates believe that permanent heat stress rules will be adopted in Oregon before next summer. And some say that with strong heat adaptations at the state level, strong rulings at the federal level could follow.
“States are coming to conclusions about what is needed for workers, which sets a bar for the federal government,” said Juley Fulcher, worker health and safety advocate for Public Citizen, a nonprofit public interest organization. “It’s not unheard of for the federal government to require less than what a state can require, but it is a little harder for them when they’re writing a new standard to ignore the important things that have been enforced in places like Oregon.”
Establishing a federal heat standard would require employers in all parts of the country to provide protections to workers. This would include states that have been reticent to set such standards, like Virginia, which recently voted down a state heat ruling.
Employers have expressed concern about the expenses of meeting federal heat-safety standards.
In a public comment submitted in response to the ANPRM by the National Federation of Independent Business, the group’s vice president, David S. Addington, argued that OSHA has already implemented adequate heat protections through the “Water, Rest, Shade” educational campaign and section 5 of the Occupational Safety and Health Act.
Addington also said that in the event of worker fatality due to heat, unemployment compensation and health and life insurance can alleviate the financial stress experienced by the worker’s family.
Roughly half of farmworkers lack legal immigration status, according to the U.S. Department of Agriculture. Many of them don’t qualify for unemployment, health, and life insurance, so if a heat-related fatality does occur, their family does not receive these financial benefits.
Worker safety advocates believe the upfront costs of mitigating heat hazards could actually save employers the money spent on workers’ injury compensation and lower productivity levels due to hot conditions.
“When you are overheated, you self-correct, and one of the biggest ways that you self-correct is by slowing down,” said Public Citizen’s Fulcher. “If you’re out jogging and you get overheated, you slow down and start walking. This same thing happens to workers. They’re getting less done because they’re overheated than they would have if you had just given them a couple of breaks.”
It is harder for low-wage workers to advocate for specific heat protections in hazardous workplace situations when employers aren’t required to have any particular safety measures in place, according to Kate Suisman, attorney and coordinator of campaigns and alliances at Northwest Workers’ Justice Project. Usually, workers can report issues to their state’s work-safety agency, but unless a site inspection occurs and an infraction is seen firsthand, little is done about the issue.
“Anyone can report to [their state’s] OSHA that workers aren’t safe,” said Suisman. “But there’s a pretty low rate of actual inspections. They will usually send the employer an email or letter informing them of the reported violation, and if their response is sufficient, that’s pretty much the end of it.”
Currently, OSHA uses the General Duty Clause from the OSHA Act of 1970 to cite employers for heat-related hazards in the workplace. The clause requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm,” yet it does not define these hazards using a heat index for dangerous temperatures or provide risk mitigation strategies.
Because the General Duty Clause has no defined thresholds for what counts as too hot, OSHA has had difficulty proving in violation cases that a workplace hazard existed, even if a heat-related death occurred, according to the ANPRM. A federal standard would specify what counts as a workplace heat hazard, making it easier to pinpoint violations of safety standards.
According to worker health advocates, improving the enforcement of heat standards is one of the more challenging aspects of federal and state rulings.
“We hear time and time again from farmworkers and our [union] members that they don’t have a lot of trust with Oregon OSHA,” said Cuello-Martinez of the Oregon-based farmworkers union, PCUN. “There have been several workers who have reported cases and either have not seen accountability for the employer, or the employer is okay with paying the fine that they receive.” Farmworkers have also expressed fear of retaliation from the employer if they do report a violation, so many remain silent.
Despite these issues, worker health advocates are still pleased with what is outlined in the federal ANPRM, and eager to ensure the rulemaking process continues.
“The average amount of time that it takes OSHA to create a rule is eight years,” said Public Citizen’s Fulcher. “But [policymakers] have said they’re committed to getting a proposed heat rule before the end of Biden’s first term.”
According to Fulcher, once a proposed rule is created, it once again goes to public comment, public hearings, and a revision process. After this, it’s sent to the Office of Management and Budget, where it can get final approval and eventually be published in the Federal Register, becoming a regulation. The timeliness of getting a heat standard for workers in the face of increasing temperatures is why advocates and policymakers are rushing to get through these policy steps before President Biden’s first term is over.
“It’s really amazing the number of hoops they have to jump through,” said Fulcher. “If the administration switches to a Republican president, there’s no doubt that this will be shelved and stopped in its tracks.”