New rules and citations encouraged
BY CRAIG W. ANDERSON
As new heat-illness regulation bills moved through the California legislature, the US Department of Labor/Occupational Safety and Health Administration (OSHA) stepped up its in-place heat-related inspections.
According to a Department of Labor memo of July 19 to Regional Administrators, “This memo directs the field to expedite heat-related inspections and to issue citations, where appropriate, as soon as possible. This will result in swift abatement and reduce heat-related injuries and deaths.”
Bills in the legislature
“Both are bad bills, job killing bills, period,” said SJFB President Bruce Fry. “We protect our workers with regulations that are already in place. Farmers treat employees as they’d want to be treated.”
He hoped Gov. Brown would veto the bill and AB 2676 as well.
AB 2676, Ag Employee Safety, passed the state Senate and was passed by the Assembly. It now awaits Gov. Brown’s signature or veto. The bill passed on party lines.
AB 2676 changes violations of heat law to misdemeanors, punishable by up to six months in jail and a $10,000 fine. Should a violation result in an injury, farmers could serve up to a year in a county jail and be fined up to $25,000.
Republican senators argued that the law is offensive to responsible growers and that if current law is enforced by state safety regulators, criminal penalties wouldn’t be necessary.
During debate on 2676 Sen. Doug La Malfa, R- Willows, said, “By and large, farmers treat their employees well and humanely.”
Local legislators voting No were Bill Berryhill, Huber, and Olsen; Buchanan, Galgiani, and Pan had no votes recorded.
AB 2346, another heat illness prevention bill received approval via a Senate vote and was returned to the Assembly where it passed. Next, it will end up on Gov. Brown’s desk, awaiting his signature.
The bill creates regulations for heat illness prevention that solely and profoundly impact agriculture, along with new requirements that surpass the current regulations which are working well. It would impose unreasonable fines and penalties when compliance is in question and it also allows a private right of action, e.g., lawsuits.
Voting Yes were Galgiani and Pan; voting No were Berryhill, Buchanan, Huber and Olsen.
“AB 2346 and AB 2676 will be heading to the governors desk and we plan on making a trip to the Capitol to protest these bills,” said Kory Campbell, SJFB program director.
The new bills add to the already crowded schedule farmers must observe due to the glut of regulations and Cal/OSHA’s not holding back on their inspections, sending memos and directives to their offices and inspection teams are beginning to appear.
AB 1313 (Overtime) did not pass a third vote on Friday, Aug. 31, and thus will not be enacted into law. “I’m happy the Assembly refused to concur with the Senate amendments to AB 1313 and this means the ag overtime bill failed to pass,” Campbell said. “Thank you to everyone who wrote letters and placed phone calls to the legislators. It definitely worked this time.”
A recent Farm Team email noted that Cal/OSHA inspectors had inspected a Farm Bureau member near Stockton recently and reminded growers that they will be questioned not only about heat illness regulations but employees will be interrogated, restrooms checked, equipment examined to be sure it’s being used properly, and that all safety measures are in place including certification of forklift drivers.
A memo from the office of Thomas Galassi, director, Directorate of Enforcement, to Richard E. Fairfax, deputy assistant secretary, notes that “CSHOs [a compliance safety and health officer from OSHA] will ensure that heat hazard citations are well documented” by using a questionnaire that “can collect the necessary information to adequately document worker exposure to heat.”
After describing the process – which begins with a heat advisory from the National Oceanic and Atmospheric Administration that establishes if the heat is at or above the danger zone for a particular area – Galassi’s memo notes: “A violation of the general duty clause may exist in these conditions when workers have been working outdoors and their employer is aware of heat-related dangers but has not taken protective action to provide workers with, at a minimum, water, rest and shade.”
Notices issued regularly
“These notices come out annually, calling for sweeps and more diligence by inspectors,” said SJFB program director Kory Campbell. “They look for heat and then come in to inspect.”
She added, “I haven’t heard much from members, no complaints. But there will be more inspections as harvest arrives.”
Violations and evidence
The memo then says that to establish the evidence “necessary to cite a general duty clause violation” certain types of evidence are needed and the form used to collect that information explains the evidence needed.
A violation occurs, notes Galassi’s memo, when four factors are present: the employer failed to keep the workplace free of a hazard to which its employees were exposed; the hazard was recognized by the employer or employees; the hazard was causing, or was likely to cause, death or serious physical harm; and there was a feasible and useful method to correct the hazard.
To avoid being cited, employers must provide water, rest and shade; each must be present in the employer’s heat-illness program.
Galassi writes, “If all four factors for a general duty clause violation are not present, a Hazard Alert Letter (HAL) shall be issued to the employer as soon as possible” recommending steps the employer must take to protect workers.
The heat-related inspection questionnaire has some requirements that ag employers may have difficulty implementing such as rescheduling “strenuous tasks for cooler parts of the day or days with reduced temperatures” and creating an “acclimatization program” so employees will get used to the work environment.
The questionnaire also asks whether a work/rest cycle is in place and if a “knowledgeable person on site who is authorized to modify work tasks and work/rest schedules as necessary?”
If shade or a climate controlled area is available for breaks, rest period, and worker recovery, it must be described.
Training is also part of the questionnaire and asks if employees have received training on the effects of heat and heat-related illnesses, what information was provided, and “are OSHA or other materials on heat-related illness posted in the workplace?”
A sample hazard alert letter accompanying the memo states that general controls, including training, personal protective equipment, administrative controls and hygiene practices, health screening, and heat alert programs must be in place.
Administrative controls must be considered and implemented, including, “…scheduling hot jobs for cooler parts of the work day, and routine maintenance and repair work for the cooler seasons of the year”; “permit employees to take intermittent rest breaks with water breaks, [and] use relief workers and reduce physical demands of the job”; and “have air-conditioned or shaded areas available for these break/rest periods.”
Health screening and acclimatization are required and, according to the memo, “workers should be allowed to get used to hot working environments by using a staggered approach over several days.”