Washington ag workers protected from the heat under 2022 emergency rules

Under updated emergency heat protections from the Washington State Department of Labor & Industries, farmworkers are entitled to paid rest breaks in the shade when temperatures reach above 89 degrees.

United Farm Workers director of strategic Elizabeth Strater said the rules cover most outdoor workers, but are especially important when it comes to the health and safety of agricultural workers being paid by piece rate.x

“When the temperatures are higher, they have a direct financial incentive to push their bodies beyond what the body is meant to endure,” Strater said. “It literally costs them money to stay adequately hydrated enough that they have to use the bathroom.”

Strater said that leads to workers’ pushing themselves past the point of exhaustion, getting sick from prolonged exposure to high temperatures and a chance of serious illness or death.

Historic heat wave in 2021 sparked first set of emergency protections

A historic heat wave in Washington state last summer prompted L&I to issue a set of temporary rules for employers governing what resources they must make available to employees working outdoors in high temperatures.

Washington State Tree Fruit Association president Jon DeVaney said the state had existing requirements in place to protect outdoor workers in the heat and smoke, along with additional measures taken by growers at an individual level.

“The change is really just specifying exactly what will be done when and standardizing it across all outdoor work, rather than needing to come up with our own response plans,” DeVaney said.

DeVaney said the changes have created additional paperwork for growers needed to document some of the safety measures they were previously provided for their workers.

“Nobody likes more government paperwork, but it does standardize this,” DeVaney said. “It’s a change in implementation more than doing something.”

Both the 2021 and 2022 emergency heat protection rules included mandated paid rest breaks, enough cool water for each employee to drink at least a quart per hour and sufficient shade for everyone to rest under.

Farmworkers’ advocates said there are currently no federal rules regarding protections for outdoor workers dealing with high temperatures and Washington State is one of the few states in the country that has instituted its own heat protections.

Temperature threshold for rules to kick in lowered from 100 degrees to 89 degrees

However, the 2021 rules were set to only kick in if the temperature was over 100 degrees — a threshold that received strong pushback from farmworkers’ advocates.

“[With temperatures] at 89 degrees and you’re picking at a fast rate, that could have a very, very harmful impact on your well being,” said Edgar Franks with Familias Unidas por la Justicia. “We wanted to see the rules lower than that.”

Individuals wearing heavier clothing or gear for their work can see their protections start going into effect at a lower temperature, but Strater said they would like to see any permanent rules set the threshold for all outdoor workers at around 80 degrees.

An additional change to the rules in 2022 includes a provision requiring employers to have a set schedule to check in on workers, which DeVaney said will help keep growers working alone safer.

“Just being aware of their conditions and having a set schedule to check up on them will prevent some of the few injuries and deaths that have occurred with workers working outdoors,” DeVaney said.

Some companies have shifted to working off-hours in the hopes of beating the heat and mitigating heat-related illnesses, but Strater said the change has also had some unintentional consequences.

“One thing that we did notice in our communities is an uptick of younger and younger children working in the fields,” Strater said.

Strater said workers now required to start late at night or early in the morning may not have someone available to watch their kids during those hours and are instead bringing them to work.

“So you have a 7 or 8-year-old child and one cell phone: do you leave them at home by themselves with no way to contact you? Or do you bring them to work with you so you at least can keep an eye on them?”

L&I to investigate complaints, potentially issue fines against employers in non-compliance

L&I public affairs manager Matt Ross said anyone concerned with potential violations of the emergency heat protections can file a complaint against the employer or company in charge.

From there, Ross said L&I investigators will look into the claim and if they find that the employer has violated the rules, they could be fined.

“It’s impossible to say specifically what a company might be fined for violating these rules, but it could be significant,” Ross said. 

Strater said her and other advocates are concerned about whether workers have been provided with information regarding the new rule changes and the rights they are entitled to.

“There’s a little bit of frustration at this point, given that these rules were enforceable as as of June 15,” Strater said. “For the most part, we find that Washington farmworkers are unaware that there are new rules.”

Ross said information regarding the rule changes is available on the L&I website and in online news articles, as well as through different advocacy groups who have been involved in the rulemaking process.

“We also have direct outreach teams who go out to visit farms, who set up tables at community fairs around the state and who talk directly to the community,” Ross said.

Farmworkers’ advocates say additional protections are needed, along with permanent rules

Franks said he and other advocates at Familias Unidas por la Justicia would like the temperature threshold lowered  for the rules to go into effect and additional provisions for mandatory hazard pay.

“We want to make sure that this is about worker safety and health,” Franks said. “I think that should trump anything: protecting people that are out in agriculture and are putting their lives on the line to keep us fed and the economy going.”

Franks said he would also like to see a larger conversation surrounding agricultural companies’ contributions to climate change and what plans they may have to address it.

“What kind of practices are they going to do to mitigate climate change?” Franks said. “I’m talking specifically about the use of pesticides and fertilizers and ozone depleters and their responsibility in the role of cleaning up.”

With climate change and its impact on fluctuating temperatures in mind, Strater said it could be helpful to have the emergency heat rules in effect year-round instead of June 15 through the end of September.

“If it’s not that hot, the rules aren’t triggered,” Strater said “But that’s just one example of some of the common sense things that we’re looking for in the permanent rulemaking process.”

Ross said discussions continue between the various stakeholders regarding what those permanent rules should include and they hope to have them finalized and go into effect next summer.

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