Heat safety remains priority for regulators

Issue Date: March 2, 2016
By Bob Johnson

Heat illness prevention will continue as the No. 1 priority for Cal/OSHA inspections on the state's farms in 2016, and the United Farm Workers union likely will be actively involved in looking for problems, according to farm-safety specialists.

Under settlement terms of a lawsuit known as Bautista v. Cal/OSHA, the union can have evidence it gathers about alleged non-compliance with the state heat-protection standard seriously considered by Cal/OSHA, the state Division of Occupational Safety and Health.

Last summer, using an access regulation adopted by the state Agricultural Labor Relations Board, UFW agents entered farms and ranches throughout California, according to Bryan Little, chief operating officer of the Farm Employers Labor Service.

"Their stated purpose was to educate farmworkers about heat illness," Little said. "Officially, the UFW has no more priority than anyone else does. The reality is that complaints from the UFW are given priority."

Little made his remarks as regulators, attorneys and other experts working for the state's farmers discussed enforcement of the Cal/OSHA Heat Illness Prevention Standard during the annual AgSafe Conference in Monterey last week.

The UFW likely will continue seeking access to the state's farms—the union filed 65 to 70 "Notices of Intent to Take Access" with the ALRB last year as part of what the union called "heat sweeps," Little said. Safety specialists said the best defense is to know the heat illness regulations and follow them.

"It's important to be in compliance with the heat illness prevention standard," said Little, who is also director of employment policy for the California Farm Bureau Federation. "The good news is that (state Department of Industrial Relations Director) Christine Baker said the industry is at a high rate of compliance with heat illness inspections."

There were no heat illness deaths in California agriculture last year, according to Baker.

"Employers have a primary responsibility for providing training to avoid injuries and illness," she said. "Every workplace injury or illness could have been prevented, and should have been prevented. By empowering California workers with the knowledge of how to work safely, we will all be better off."

The most common reasons for citations to agricultural employers after heat-safety inspections have to do with failure to produce written plans for preventing heat illness.

"About 50 or 60 percent of the heat illness citations we issue are for not giving us the program," said William Krycia, state coordinator of Cal/OSHA Enforcement.

A copy of an employer's heat illness prevention program must be kept at the work site, not only back at the office, and it must be presented to a Cal/OSHA inspector upon request.

"Make sure you know what your emergency response procedures are," Krycia said. "That is the second most common citation. You have to have a supervisor or designee stay with someone who is feeling sick."

Under the heat illness prevention standard, shade must be present for all employees on a work break when the temperature exceeds 80 degrees, and one quart of cool, fresh and pure water per employee per hour must be provided. Agricultural employees must take a 10-minute heat break every two hours when the temperature reaches 95 degrees. Many heat-safety plans are far more detailed than the standard requires, but elements voluntarily included in a plan must be followed.

"The written plan must be established, implemented, maintained and effective," said Lisa Prince, a partner in the Healdsburg law firm of Walter and Prince LLC. "If your plan requires things that are not in the regulations, if you don't follow your own plan, you open yourself up to a citation."

Changes in the details of the heat-safety requirements implemented for the 2015 season are available on the Cal/OSHA website.

Maintaining and implementing a strong heat-safety plan is, by far, the single most effective thing agricultural employers can do to prepare themselves for the UFW taking access to their farm during its "heat sweeps," Prince said.

"Our magic bullet is to be compliant," she said. "We're going to have the written plans and make sure we know how we're going to implement them. The more documentation of your compliance, the better off you're going to be."

If Cal/OSHA comes to inspect the farm, Prince advised agricultural employers to conduct their own, parallel investigation.

"It is recommended that as the information is being gathered, your representative is also gathering information," she said. "If they are taking photographs, you should take photographs. If they are taking measurements, you should take measurements. I don't think it's a bad idea to include some ideas of how to handle an inspection as part of your supervisor's manual."

This parallel investigation is particularly important because, under terms of the Bautista settlement, a citation may be issued based on testimony given by someone who cannot currently be found.

"We will need to follow the investigation more closely, and conduct our own interviews, because the division may try to submit declarations that were taken a year ago from people who are no longer available to cross-examine," Prince said.

Under the settlement, if the UFW—or, theoretically, another private party—files a heat-illness complaint, Cal/OSHA must investigate the allegations.

Little outlined what happens if the UFW files a Notice of Intent to Take Access and gives a copy to someone in the farm office.

Union representatives have considerable latitude in what they discuss with employees, but they are limited in when during the day they may gain worksite access; they may do so for an hour before and after a shift and for up to an hour during lunch.

Little advised taking steps to maintain some control over, and knowledge of, who is on your property.

"You can put up a gate, and if that's too expensive you can always put up a 'No Trespassing' sign," Little advised. "You need to understand who is on your property and what they are doing there."

(Bob Johnson is a reporter in Davis. He may be contacted at bjohn11135@aol.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.

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