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A lawsuit filed Oct. 18, 2012, on behalf of farmworkers by the United Farm Workers of America alleged California’s Division of Occupational Safety and Health (Cal/OSHA) has failed in its duty to enforce regulations protecting outdoor farm workers.
According to the official complaint, the plaintiffs in the case accused Cal/OSHA of several charges, including:
“Farm workers throughout the state continue to suffer and die from the heat while the agency responsible for enforcing the regulation denies, misinterprets and systematically fails to perform its statutory enforcement duties,” the plaintiffs said in the official complaint.
The complaint alleged “at least 28 farm workers have died of what were likely heat illnesses since the Heat Illness Prevention regulation was enacted in 2005,” but Cal/OSHA spokesman Dean Fryer told SHRM Online that these figures are “not accurate.” Fryer pointed to Cal/OSHA data that shows that, since the heat illness standard was made effective, seven deaths of agricultural workers have been confirmed by coroners as being related to heat. When you include all fatalities related to heat in California from every outdoor occupational industry, the number rises to 19. Four deaths this summer are being investigated.
California was the first state to adopt rules requiring water, shade and rest for outdoor farm workers, in a law adopted in August 2005 in response to five heat-related deaths of farm workers that year. The heat regulation requires employers with outdoor workers to establish and implement emergency procedures and provide training on heat illness prevention, at least one quart of drinking water per hour per employee, and shade when temperatures are above 85 degrees.
UFW Claims Efforts Frustrated by Regulators
The United Farm Workers of America (UFW) claims to have been prevented in its recent efforts to improve farm worker heat safety because of Cal/OSHA’s “unreasonable and unlawful policies and practices.” According to the complaint, in the summer of 2011, UFW staff filed or assisted farm workers in filing 78 complaints reporting serious violations of the Heat Illness Prevention regulation by agricultural employers. The union alleges Cal/OSHA failed to conduct any on-site inspection for at least 55 of the 78 complaints, did not attempt to initiate an on-site inspection within the statutory time frame for at least 43 of the 78 complaints, failed to contact the complainant regarding 32 of the 78 complaints and, despite documented violations, issued a citation for violation of the Heat Illness Prevention regulation in connection with only 3 of the 78 complaints.
In 2011, inspectors conducted 1,090 heat inspections in the agricultural sector and devoted a third of the agency’s resources to heat illness prevention, Fryer told SHRM Online.
“Protecting farm workers from heat illness is one of Cal/OSHA’s major priorities. California’s current outdoor heat standards are the most stringent in the nation,” Fryer added.
State regulators say increased enforcement has paid off with greater compliance. Fryer said that Cal/OSHA has conducted over 3,000 heat safety inspections per year for the past three years if inspections for all outdoor occupational industries are taken into account. The 2011 total for all industries was 3,301. “We have issued hundreds of citations and penalties for heat safety standard violations, and compliance has increased in all industries from 32 percent in 2006 to 76 percent in 2011. The lawsuit risks draining resources away from these critical enforcement actions,” he said.
“The comprehensive inspections include a thorough review of employers to ensure they have enough water and shade, are providing rest breaks, and have provided adequate training for supervisors and workers about emergency procedures in case workers become ill from the heat,” said Cal/OSHA Chief Ellen Widess, in a media statement.
During April through September, these efforts are redoubled, she said. Employers who fail to adhere to the heat regulations are cited and required to correct the violations, she continued. Where appropriate and necessary, outdoor worksites are shut down when inadequate shade, water or emergency response procedures constitutes an imminent hazard. Those sites remain closed until the employer can demonstrate that the dangerous conditions are mitigated.
Heat Safety-Related Bills Rejected
The lawsuit comes after Gov. Jerry Brown vetoed a pair of bills in early October that would have increased criminal and civil penalties for farmers who fail to adequately protect their workers from heat.
One bill would have assigned fines and jail time for farmers who don’t provide enough shade and water to their workers, while the other would have let workers sue their employers if the employers didn’t supply water within 10 feet or shade within 200 feet of laborers.
In his veto statements, Brown said California’s outdoor heat standards are the most stringent in the nation and that compliance has been improving each year.
“While I believe enforcement of our heat standards can be improved, I am not convinced that creating a new crime—and a crime that applies only to one group of employers—is the answer,” Brown wrote.
UFW President Arturo Rodriguez said in a statement that he was “appalled” at the governor’s decision to “choose politics over the life of a human being.” He said more stringent penalties would have been justified because lives of workers are at stake.
Roy Maurer is an online editor/manager for SHRM.
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