Keeping Up to Date on Federal and State Safety Requirements

With a patchwork of federal and state regulations on the books and new ones emerging all the time, government agencies and employer groups are working to keep farmworkers and farmers up to date on safety technology and requirements. State Safety Requirements

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“We have new rules on a semi-regular basis,” said Guadalupe Sandoval, managing director of the California Farm Labor Contractor Association. “We have new federal OSHA [Occupational Safety and Health Administration] rules that are impacting here in California, hazard communication and chemical safety stuff, understanding the new labeling guidelines, the new pictograms that they’re putting on the SDS’s [Safety Data Sheets]. There are some federal EPA changes that are pending on pesticides and the training of workers; that’s already happened at the federal level, and California is probably implementing their changes by next year that will change the training requirements for farmworkers on pesticides. It does get somewhat complicated for employers to try to keep track of all these.”

Hot regulation issues

In particular, Sandoval said there is rising interest in regulations designed to prevent heat-related illnesses and deaths. He said OSHA is in the process of designing such a rule, and California already has one. “Over the years, there have been a significant number of workers that have died as a result of heat illness in the workplace,” he said. The California rule requires adequate shade for employees working outdoors in warm temperatures; they also have to have adequate supplies of water that are constantly replenished, and emergency procedures. “But they also have to train their workers on understanding what causes heat illness, what represents heat illness, understanding the signs and symptoms, understanding how to report an illness,” Sandoval said.

Patrick Kapust, OSHA deputy director of enforcement, said, “Employers have a responsibility to protect workers from exposures that can cause injury, illness or death. Examples include: providing employees working in hot temperatures with water, rest breaks and shade; using scissor lifts or elevated work platforms when workers must access trees; providing fall protection; ensuring power machines and equipment have guards and shields to protect from amputations; supplying workers with protective clothing and respirators if they are using pesticides and other chemicals.”

Heat stress is also a major issue for Luis Cruz Santiago, a farmworkers health and safety educator with North Carolina Cooperative Extension. “We stress wearing the right, proper gear and clothing,” he said. “For example, long-sleeved pants, boots, gloves and hats. Take breaks every so often and, especially if they’re working with tobacco, they probably want to wear some kind of rain gear, to prevent any fluids from the tobacco plant [getting] onto their skin.”

Cruz is extending this knowledge to the state’s immigrant farmworkers under a program created two years ago by a grant from tobacco giant Philip Morris International. He said the curriculum and program were created and developed by researchers at North Carolina State University, with input from the community, growers, labor contractors and farmworkers.

Cruz serves Wayne County, where the main crops are tobacco, sweet potato and cucumber; the program has now expanded to two additional counties, Ashe and Alleghany, where farmworkers are on Christmas tree plantations. Cruz said the program has been very successful. “Extension has always been helpful to growers and farmers, not necessarily on the labor side with farmworkers,” he said. “Now, I think we are shifting directions and it has been well received, because it’s a win-win. It benefits the farmworker in educating him and making sure of their health and safety, and it also benefits the grower by greater productivity and compliance with current laws.”

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Green tobacco sickness threat

Tobacco production carries the unique threat to workers of “green tobacco sickness,” nicotine poisoning from contact with the plant. The National Institute for Occupational Safety and Health said the illness can cause nausea, vomiting, dizziness and headaches, and can make it difficult to sleep or eat. It can be difficult to diagnose because the symptoms are similar to those of heat illness and pesticide poisoning. Workers are at especially high risk for developing this illness when their clothing becomes saturated from tobacco that is wet from rain or morning dew or perspiration. “We feel that once farmworkers are educated and the more they know, they’ll take better care of themselves,” Cruz said. “When we describe symptoms, we’ve had a lot of farmworkers say, ‘Oh, so this is what I had.’”

Cruz is also a Worker Protection Standard (WPS) Designated Trainer with North Carolina Cooperative Extension on behalf of the federal EPA. This program is designed to reduce pesticide exposures by instructing both farmworkers and chemical handlers on such aspects of regulations as training, notification, safety and hazard communication, use of personal protective equipment, and supplies for routine washing and emergency decontamination. One of the revisions adopted last year in the WPS will require training every year, instead of every five years, beginning in 2017.

Cruz said workers are encouraged to report on farm conditions. “They’re given numbers, for example, of the Department of Labor and other local agencies. I’m with the Extension Service, so every farm that I visit, I give them my card. My being bilingual, I can also assist them.” He said there are also “a few” health care workers in the area who speak Spanish, but “some farmworkers don’t even speak Spanish; they speak indigenous languages that are not written, and it’s even harder to communicate or find somebody who actually speaks their language.” OSHA’s Kapust said the agency requires employers to provide training, instructions and signs in a language workers can understand.

In California, Sandoval said there are protections for whistleblowers, and a complaint will trigger an inspection by the state Division of Occupational Safety and Health, better known as Cal/OSHA. In addition, worker advocacy groups like the United Farm Workers have Memorandums of Understanding with Cal/OSHA. Sandoval said, “If any of their field crews find a violation, they can report that to Cal/OSHA, and Cal/OSHA is required to respond.”

Health risks vary by state

The main health risk for agricultural workers is different in each state depending on the prevailing commodities. In Washington State, it’s heights. “There’s big dollar injuries of falls from ladders,” said Jeff Lutz, a Safety Director for Washington State Farm Bureau. Tree fruits dominate the state’s farm labor sector; according to the 2012 Census of Agriculture, Washington had 2,839 apple farms covering over 174,000 acres – 45 percent of all U.S. apple acreage.

Some producers are switching to alternative production systems; a few use pedestrian orchards, where the trees cultivated are several feet shorter than the industry standards and no ladders are necessary. More commonly, Lutz said apple farmers are shifting to V-type trellises, which have wires strung between posts at either end of a line of trees that are offset in a V shape at 20- or 30-degree angles from bottom to top, and are harvested from platforms rather than ladders.

Another potential area of worker injury is exposure to residues that are in the orchards, or there may be an allergic reaction to residues in orchards, although those aren’t necessarily from pesticides – workers can have allergic reactions to dust, for instance. Washington orchard growers employ airblast sprayers, which use a relatively low pressure pump to deliver the spray mixture into an airstream produced by a large fan, effectively treating a large area with a pesticide mist. They do, however, tend to have greater problems with drift than would a finely directed spray.

And adverse conditions can lead to problems. Lutz said there was a tremendous amount of spray drift in 2015. “It was a real quick springtime,” he said. “People went out and used airblast sprayers to apply at a time when they shouldn’t have. Wind velocities were too high for several workers in an adjacent field they didn’t see, and they got exposed.”

Washington State Farm Bureau operates a safety incentives program that gives refunds back to growers on workers compensation premiums. “The best way to describe it is ‘underwriting,’” Lutz said. “We do on-site visits to members and prospective members, and we ensure that they have written safety measures and procedures and good training modules in place, and that they’ve got a workplace relatively free of recognized hazards.” He said the program is proactive and preemptive.

Washington growers are required to buy workers comp through the state Department of Labor and Industries. Its administration is a three-legged stool – the state insurance division, an executive division that manages it, and the Division of Occupational Safety and Health. Washington is among 22 states that, along with Puerto Rico, operate their own occupational safety and health programs for private sector employees. OSHA’s Kapust writes, “State plans are required to have standards and enforcement programs that are at ‘least as effective’ as OSHA’s in protecting workers and preventing work-related injuries, illnesses and deaths as provided for in the OSH Act of 1970.”

A farming operation is exempt from OSHA requirements if it has employed 10 or fewer workers at all times during the past year, and if it has not had an active temporary labor camp during the same time period. Family members of farm employers are not counted as employees. “All other farming operations fall under OSHA regulations and may be inspected,” Kapust wrote. Regulated farms are subject to an “unprogrammed inspection [which] responds to reports of a fatality or catastrophe, hospitalization, amputation, loss of an eye, imminent danger, or if an employee of the farm files a safety, health or whistleblower complaint.” Operators can be fined $7,000 for every violation detected – $70,000 for “willful or repeated” violations. OSHA is in the process of adjusting the fines for inflation as per the 2015 Bipartisan Budget Act.

To qualify for Washington Farm Bureau’s program, in addition to meeting requirements like written plans and safety training, growers have to have a good track record. The insurance industry uses “experience ratings” to measure, workers compensation losses by the insured with the industry average and adjusts compensation accordingly. Lutz said Washington Farm Bureau uses experience ratings as well as loss ratios, which are claims costs vs. premiums. He said, “If our members’ claims costs are always at 1 or above, and they’re consistently in that category and not contributing to the health of the group, then they get put on suspension or removed and they’re not allowed to participate in the program.”

Sandoval said many California agricultural employers also rely on input from the loss control staff of their workers compensation insurance carriers. “Sometimes they’ll try to address issues that seem to be leading to high injury rates,” he said, “[to] try to identify that and correct it for employers through training that they’re doing for their employees as well.” His own organization provides a significant amount of instruction on regulatory requirements to supervisors and employers; he said Cal/OSHA’s training requirements for production agriculture are different than those of other industries, where trainers have to be certified in areas of expertise. “Just understand what the hazards are; train your workers on those hazards, and how to avoid them,” he said.

But they are required to have, in writing, an Injury and Illness Prevention Program (IIPP). Sandoval said even if there isn’t a specific regulation dealing with certain hazards, they’ll be addressed through your IIPP, which is workplace-specific. “If they’ve identified through your injury logs that you’ve had a lot of slips and falls, you have to do a training program to identify what’s causing the slips and falls, and train the workers on it,” he said. “One of the most common violations that Cal/OSHA will write is the failure to properly implement the Injury Illness Prevention Program, and that can be failure to show documentation of training on certain known exposures out there.” There is even a proposal pending in the California State Legislature that would require employers to distribute copies of their IIPPs to every employee.

Lutz said, “Employers are much more attuned now to the safety of the workers. One of the reasons is the food safety requirements, and now with the Food Safety Modernization Act coming along there’s going to be much more oversight. It’s been driven some by food safety, and that’s on the marketing side of the products, but it’s also really the awareness.”

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