Pushing back on Cal/OSHA that want to press criminal charges of ag employers do not protect their employees during the COVID-19 pandemic.
Roger Isom is president and CEO of the Western Agricultural Processors Association, based in Fresno. It’s a trade association representing tree nut processors. He said, ag employers are trying very hard to protect their employees and don’t need a threat from Cal/OSHA.
“We want to provide a safe workplace,” said Isom. “You have to, I mean, this is a serious virus and can spread easily. So you’ve got to be careful about it. The problem we see is if you’re grossly negligent, yes, that’s an issue. But what we’ve seen historically is that Cal/ OSHA could cite you for checking your employees every day, but you didn’t document that you did. Why is that a criminal penalty,” noted Isom.
“We checked our employees and the workers say that we did it, but we don’t have documentation of it. And so now Cal/OSHA wants to make this a criminal penalty. No, that’s, that’s not acceptable,” Isom said.
“My guess is that there certainly is pressure on the legislature to do something. If they eliminate that criminal element and make it a standard penalty that we see typical Cal/OSHA requirements, it’s going to be enforceable.
“People are going to follow it,” said Isom. “Again, we need to do this. We don’t need Cal/OSHA to tell us to do this. We have to do this. So we don’t think it’s necessary for the criminal element at all,” said Isom.
Farm Employees Must Be Protected During High Temps
By Patrick Cavanaugh, Editor
The cool and rainy weather will eventually turn to higher temperature days, and when high heat returns to the Central Valley, it’s essential that farm employees are getting enough water, rest, and shade. Manuel Cunha, the President of the Nisei Farmers League in Fresno told California Ag Today that during hot days, we’ve got to protect employees.
“Training is the first important step to prevent heat illness,” Cunha said. “All employees and supervisors must know about heat illness prevention.”
Water is the next important step in preventing heat stress.
“Employers or supervisors must provide enough fresh water so that each employee can drink at least one quart per hour—or four 8 ounces glasses per hour—and encourage them to do so,” Cunha said.
Shade is the next critical step to prevent heat illness.
“Employees should have access to shade, and they should be encouraged to take a cool-down rest in the shade for at least 5 minutes,” Cunha explained. “And employees should not wait until they feel sick to cool down.”
Finally, all ag employers must develop and implement written procedures for complying with the Cal/OSHA Heat Illness Prevention Standard.
Shade shall be present when the temperature exceeds 80 degrees Fahrenheit. The employer must maintain one or more areas with shade at all times while employees are present that are either open to the air or provided with ventilation or cooling.
The amount of shade present shall be at least enough to accommodate the number of employees on recovery or rest periods so that they can sit in a healthy posture fully in the shade without having to be in physical contact with each other.
The amount of shade present during meal periods shall be at least enough to accommodate the number of employees on the meal period who remain onsite.
The high-heat hazard temperature is 95 degrees or higher. This is when the employees must take a ten-minute preventative cool-down rest period every two hours. Often, farm operations will cease for the day and restart in the morning.
“Farmers, supervisors, packinghouses, farm labor contractors, all of these folks should have their Heat Action Plan ready, and all employers should be aware of it,” Cunha said. “They have to be ready to go, and that crew bosses, managers, foremen are making sure that the workers are getting shade and drinking plenty of water.”
If farm operations need to change their time schedules to accommodate the high temperatures, they need to implement that, as well as making sure that the workers take their proper breaks, and they have a meal.
“Lunchtime is very important for the workers to be nourished and strong,” Cunha said.
When employees are acclimating to the higher temperatures, a buddy system is essential.
“You want to make sure somebody isn’t sweating a lot or beginning to feel nauseated. As workers, they need to be looking out for each other as well. You cannot always depend on the crew boss seeing a problem,” Cunha explained.
In some places, cell phones don’t work, so workers may have to have a two-way radio. Make sure there is a way to call 911 during an emergency. Make sure you have maps posted to where the employees are working, and all the workers know where they’re at.
“If something goes down, they need to call 911, the worker or crew boss needs to say where they’re at—the address, the location, the cross streets,” Cunha stressed.
“The location should be posted on a clipboard to make sure that you have the information there for those employees,” Cunha continued. “That’s very important, to know the procedures.”
“We want all employees to go home safe to their families every night. So farming operations must have heat illness prevention plans in place,” Cunha said.
Farm operations should be sure that a supervisor is in place in all fieldwork and that supervisor must have first aid and CPR training. And if the supervisor leaves the crew for any reason, they must make sure someone is in charge.
First aid and CPR are vital with our farm crews working in the fields or even in the construction industry. Farm labor contractors must be sure that field supervisors are licensed for first aid and CPR.
OSHA’s Form 300A logs with work-related injuries and illnesses occurring in the prior calendar year must be posted. All eligible employers are required to maintain and post an annual OSHA 300A summary sheet from February 1 to April 30.
February 1 marks the deadline for you to tabulate your annual OSHA Log Summary (OSHA Form 300A) and post it in a common area wherever notices to employees are usually posted. The summary must list the total number of job-related injuries and illnesses that occurred during the previous calendar year and were logged on the OSHA 300 Form. The summary should remain posted until April 30. Instructions on how to complete both the log and annual summaries of work-related injuries and illnesses can be downloaded for free from Cal/OSHA’s Record Keeping Overview. The definitions and requirements for recordable work-related fatalities, injuries and illnesses are outlined in the California Code of Regulations, Title 8, sections 14300 through 14300.48. Employers are required to complete and post Form 300A even if no workplace injuries occurred.
Employers with 10 or less employees or who work in low-hazard industries are not required to post their summary. Additional details regarding eligibility for the exemption can be found on the OSHA Injury Tracking Application webpage.
Electronic Reporting Requirement
Additionally, many employers are required to also submit their OSHA 300A information electronically. The classes of business who must comply with the electronic reporting process include:
Any business with at least 250 employees.
Any business with 20 to 249 employees who falls into one of several classifications including agriculture. (A complete list of the affected classifications can be found here.)
Affected employers are advised to submit their 2018 OSHA 300A data through the Fed-OSHA portal by the March 2 deadline. Updates regarding the 300A reporting requirements can be found here.
For instructions regarding the electronic filing process, please see federal OSHA’s ITA website.
Temperatures heating up throughout Central California are a reminder of the critical importance of heat illness prevention for farm employees working in the luminous fields.
Scott Peters farms peaches and nectarines in the Reedley and Dinuba areas of Fresno County. He carefully watches his workers. “During the high heat periods, we have to be very careful so the guys don’t get heat illness, heat stroke types of symptoms. So we have shade and cold water readily available. We’re working on portable toilets now that have covers over them so they’re not as warm, for summer use.”
Peters maintains that prevention is always the best way to keep workers safe. “It comes down to regular training,” he said.
“We also conduct heat illness training with all the field workers. We go over proper clothing— light-colored clothing, cool clothing, hats, bandanas and sunscreen—to help prevent issues,” Peters said. “If the field worker is safe and happy, he does a better job. It’s better performance and, all the way around, everybody benefits.”
And Cal/OSHA rules require certain provisions to ensure workers’ safety as the days warm up. “We have postings,” Peters said. “Our crew bosses have binders with all the heat illness information, emergency contact numbers – both company and medical – such as 911 and the local hospital. [These postings] are with them in their vans and [affixed] to our restroom units in the field.”
Extreme Heat Wave Expected to Continue Throughout this Week
With really high temperatures throughout the Central Coast, Cal/OSHA will probably focus enforcement in coming days in these areas. Please remember the key points of compliance with the Heat Illness Prevention Standard:
* Water — 1 quart per worker per hour, with a plan for replenishment throughout the work shift
* Shade — enough for 25% of the crew working at the location; use of natural shade is acceptable if no shadow is cast; air-conditioned vehicles are acceptable; provided at all times when temperature exceeds 85 degrees
* Rest — allow workers to rest in shade if they feel the need for no less than 5 minutes
* Training — workers & supervisors must be trained about heat illness and emergency response procedures before being exposed to heat
* High-Heat Procedures — ensure effective communications in case of emergency; observe employees carefully for signs of heat illness; remind employees to drink water throughout the shift; closely supervise un-acclimatized employees for first 14 days of exposure to high heat
Cal/OSHA has consistently taken the position, according to the Monterey County Farm Bureau, that use of tractor-mounted platforms to transport workers violates Cal/OSHA safety standards.
These devices are widely used in the state, particularly in the southern Central Valley and on the Central Coast.
Current Cal/OSHA safety standards prohibit “riders on agricultural equipment other than persons required for instruction or assistance in machine operation.”
On February 24, the agency released a memorandum describing how agricultural employers who wish to use tractor mounted personnel platforms to reduce employee fatigue may write to Cal/OSHA to apply for a variance from this standard.
Information about applying for a permanent variance is available at the Board’s website.
Cal/OSHA grants temporary experimental variances (TEVs), which allow employers to “participate in an experiment . . . designed to demonstrate or validate new and improved techniques to safeguard the health or safety of workers.”
A TEV will allow you to gather the information necessary for the Board to evaluate a permanent variance application.
Generally, TEVs granted by the agency are valid for one year, and are envisioned to presage an employer application for a permanent variance.
Both permanent variances and temporary variances are granted to employers individually; an employer who has not been granted either type of variance may not use tractor transportation platforms because another employer has been granted a variance.
To apply for a TEV, you must send a signed letter to:
Many Legislative Bills Introduced in California Last Week!
The State Water Resources Control Board (State Board) held a Workshop this week to take public comment on the Temporary Urgency Change Petition (TUCP) for the State Water Project and the federal Central Valley Project.
Consistent with the Governor’s Executive Order B-21-13 issued last May the TUCP for these two projects would temporarily modify (reduce) Delta outflow and export requirements to preserve water in storage and maintain in-Delta water quality.
Additionally, the TUCP would temporarily modify (open) the Delta Cross Channel gates to improve in-Delta salinity conditions. State Board staff also presented information on water diversion curtailment notices for junior water right holders. Due to rain events a couple of weeks ago the notices have not yet been issued.
A measure that would repeal provisions of the $11.14 billion Safe, Clean, and Reliable Drinking Water Supply Act, currently scheduled to go before California voters November 4th this year, was heard in the Senate Environmental Quality Committee this week. If approved by the voters, the Safe Drinking Water, Water Quality, and Water Supply Act of 2014 (SB 848), authored by Senator Lois Wolk (D-Davis), would authorize the issuance of bonds in the amount of $6.825 billion in five separate categories. Those five categories include:
$900 million for Safe Drinking Water,
$2 billion for Integrated Regional Water Management Planning and stormwater capture and reuse projects,
$1.2 billion for projects that protect the Delta ecosystem and integrity of Delta levees,
$1.7 billion for Watershed and Ecosystem Improvements,
$1.025 billion for Water Storage Projects.
All five categories would require legislative authority to appropriate the funds. Farm Bureau remains actively engaged in this and every effort to impact the size and structure of the water bond, emphasize the need for increased water storage, area of origin water rights protections and continuous appropriation for water storage dollars. Farm Bureau has an Oppose Unless Amended position on SB 848.
A measure that would allow multiple use registrations for small livestock stockponds was introduced this week. AB 1905 (Luis Alejo, D-Salinas) would allow small (10 acre feet or less) livestock stockponds to also be registered with the State Water Resources Control Board for use as small irrigation ponds. Currently law allows small irrigation ponds to also be registered for small domestic use, but not for livestock. Farm Bureau is the sponsor of this measure and therefore is also in support.
AB 1634 (Nancy Skinner, D-Berkeley) would require employers to immediately abate conditions that Cal/OSHA alleges are a violation of occupational safety and health regulations if the agency classifies the citation as a serious, repeat serious, or willful serious violation. Under current law, if an employer appeals the citation, the employer is not required to abate the violation unless and until the appeal is denied. AB 1634 allows Cal/OSHA to grant a stay of abatement at its own discretion. This is similar to legislation Assemblymember Skinner carried in 2013 (AB 1165) which Governor Brown vetoed in October. The Governor’s veto message cited an appeal process in AB 1165 for abatements parallel to that which already exists through the Cal/OSHA Appeals Board. AB 1634 does not include that duplicative appeal process. Farm Bureau will oppose AB 1634 because it undermines due process protections allowing employers to appeal Cal/OSHA citations.
SB 1034 (William Monning, D-Carmel) would eliminate waiting periods before employers offering health insurance would be required to institute coverage. Current state law allows for a 60-day waiting period; federal law allows a 90-day waiting period. Farm Bureau is analyzing SB 1034 before taking a position.
SB 1087, also by Senator Monning, would impose a laundry list of changes to the California Labor Code for Farm Labor Contractors (FLCs). Several of these changes include:
higher licensing fees;
increase the size of surety bonds FLCs must obtain and provide documentation of the size of the bond to the Division of Labor Standards Enforcement (DLSE);
requires that surety bonds be conditioned on compliance with state laws prohibiting sexual harassment;
requires FLCs to receive training on prohibitions on sexual harassment;
doubles the number of continuing education hours required of FLCs from 8 hours annually to 16 hours annually;
adds violations of laws prohibiting sexual harassment by an FLC or an FLC’s supervisory personnel to the list of violations of law which prohibit DLSE from issuing an license to an FLC and requiring DLSE to revoke an FLC’s license;
requires FLCs to provide, upon request to a current or former employee or grower, a written statement showing compensation paid to employees, and requires growers to retain payroll records furnished by FLCs for three years.
Numerous other changes in the Labor Code pertaining to FLCs are further outlined in the bill. Farm Bureau position pending.
AB 1723 (Adrin Nazarin, D-Sherman Oaks) would authorize the Division of Labor Standards Enforcement (DLSE) to recover for employees payment of applicable penalties for willful failure to timely pay wages. Existing law provides for criminal and civil penalties for violations of statutes and orders of the commission regarding payment of wages. This bill would expand that penalty, restitution, and liquidated damages provision for a citation to also subject the employer to payment of any applicable penalties for the willful failure to timely pay the wages of a resigned or discharged employee. Farm Bureau is opposed.
AB 1660 (Luis Alejo, D-Salinas) clarifies that an action taken by an employer to comply with federal immigration law is not a violation of California’s Unruh Civil Rights Act. AB 60, which became law in 2013, requires the Department of Motor Vehicles to issue driving privilege cards to persons who cannot furnish the requisite documentation to obtain a regular driver’s license. AB 60 also prohibited discrimination under the Unruh Act against people using a driving privilege card. Farm Bureau supports AB 1660.
AB 2033 (Rudy Salas, D-Bakersfield), just introduced yesterday, would create an Agricultural Career Technical Education (ACTE) unit in the Department of Education to provide schools with assistance in establishing and maintaining ACTE classes. This bill is in response to the 2014 state budget proposal to eliminate $4.1 million from the Agricultural Career Technical Education Incentive Grant Program from the state budget. Ag Incentive Grant funds are used to update and modernize equipment and technology, as well provide vital resource for developing leadership skills and personal growth opportunities for students through ACTE programs and coursework. Farm Bureau is in support.