Washington employers push back on new worker heat-protection rules

Lorena, who asked to be identified by her first name only to avoid any potential reprisal from her former employer, regularly reported any problems she saw with lack of access to adequate water and shade – and over the years was met with repeated retaliation that she said ultimately drove her out of the career in 2021.

The heat is becoming more extreme each passing year, Lorena told Crosscut, but most changes to working conditions seem for “the benefit of the fruit, not for the benefit of farmworkers.” 

Agricultural workers are among those most vulnerable to heat-related illnesses, and according to the Centers for Disease Control and Prevention they’re dying of heatstroke at a rate nearly 20 times greater than all U.S. civilian workers. 

In July 2021 — the summer when two farmworkers, Florencio Gueta Vargas in Toppenish and Sebastian Francisco Perez in Oregon’s Willamette Valley, died during unprecedented heat waves — the Washington Department of Labor & Industries imposed an emergency heat protection order to require additional water access and cool-down periods when temperatures spike in the fields and at other work sites.

Newly proposed heat-protection rules would establish a lower, year-round threshold of 80 degrees Fahrenheit for enforcing these practices and also introduce a “buddy system” that pairs workers to watch each other for signs of heat-related illness. The rules would apply to any employer with workers in an “outdoor environment” from fruit pickers to construction workers to restaurant patio servers. State officials plan to put those new permanent rules into effect as soon as this month. 

This story is part of Crosscut’s WA Workplace Watch, an investigative project covering worker safety and labor in Washington state.

Farm owners and worker advocates have both voiced concerns about who would bear responsibility for monitoring working conditions. Written comments from the recent rule-making process show that many farmers consider the new rules unclear and costly. Advocates say the buddy system burdens workers with looking out for another individual while already tending to their own health in the fields. 

“It’s a dangerous thing to have someone whose job is actively laboring to also be in charge of monitoring,” said Elizabeth Strater, director of strategic campaigns at United Farm Workers. “It’s frustrating for advocates, it’s deadly for workers, and also logistically – it’s difficult for L&I.”

Setting new heat standards

Workers in the Agriculture, Forestry, Fishing and Hunting category filed the most workers’ compensation claims pertaining to heat-related illnesses in 2021, according to records obtained from L&I. Of those 27 claims filed statewide, just 12 were accepted. For a claim to be accepted, the agency said it must be “timely filed, meet the legal definition of an injury and have a causal relationship.” L&I received 156 heat-related claims across all industries in 2021 and accepted 82 of those. 

An L&I records officer also noted those numbers do not reflect claims made by self-insured employers, which encompass roughly 30% of employees – meaning the agency “may be missing a meaningful number of heat-related illness cases.”

L&I spokesperson Dina Lorraine wrote in an email that the agency conducts heat-violation inspections both routinely and in response to complaints. Inspectors have six months to complete an investigation; results can range from finding no issues to the issuance of citations and fees. The agency also launched an Agricultural Compliance Unit in 2021 that now oversees nearly all farm-related compliance work statewide. 

“We take our mission to keep Washington safe and working very seriously,” Lorraine wrote. “L&I inspectors are out in the field every day, all over Washington, conducting routine proactive inspections and responding to complaints about workplace safety and health.” 

Lorraine wrote that the compliance unit had not yet issued any heat violations this year, but had cited Central Wine Grape Management in Quincy with a $1,800 fine last fall for failing to provide adequate shade for a group of farmworkers.

L&I’s current emergency heat-protection order includes mandatory 10-minute cool-down periods every two hours once temperatures hit 89 degrees Fahrenheit. It also requires employers to offer “suitably cool” drinking water to their workers at all times and provide access to shade at all times when workers are present.

The proposed rules set standards for employers on acclimatizing workers to rises in temperatures with cooling breaks, shady rest areas, appropriate clothing and other practices once the temperature hits 80 degrees. Employers must have plans for observing signs of heat-related illnesses and providing information about heat protections in multiple languages. 

Industry leaders and employers pushed back against the proposals throughout the rule-making process this past spring. The Washington Farm Bureau wrote that L&I is pinning “excessive responsibility” on the employer, as well as “overestimat[ing] the benefits of the new rule and underestimat[ing] the cost.”

The Building Association Industry of Washington likewise argued that ambiguity in the proposed rules could “allow unlimited breaks for any employee with the threat of a fine for discrimination or retaliation against an employer that questions the validity of excessive preventive cool down periods.”

Worker advocates told Crosscut that L&I’s existing approach to enforcing heat violations has proven too reactive, often coming after a farmworker has suffered serious illness or death. Advocates at Seattle-based Columbia Legal Services wrote in their rule-making comments they would like to see more specifics on drinking water temperature, shade requirements, acclimatization and employer responsibility when enforcing the buddy system.

“Vagueness in language creates rules that are either wholly unenforceable, in that hearing officers or judges would be unable to determine whether they had been violated, or enforceable only in retrospect,” the CLS letter notes, adding “LNI cannot allow worker death or illness to be the metric that retroactively determines an intervention’s ‘effectiveness.’”

The Washington Labor Council, which represents 600 affiliated labor unions across the state, echoed similar concerns in their letter, and have also pointed out that L&I does not have any whistleblower protections as their rulemaking currently stands. 

Additionally, they argued that the data that L&I based its 80-degree trigger hazard temperature on is outdated, and instead should follow the U.S. military’s threshold of 75 degrees Fahrenheit as “the working conditions of Washington civilians should not be harsher than the training conditions of soldiers in the military.” 

Some groups across Washington, such as Familias Unidos Por la Justicia, are also calling on employers to enforce hazard pay starting at 80 degrees, and, if temperatures hit 90 degrees or higher, to cease all field work with compensation. 

The buddy system draws concern

Advocates have also voiced significant concern about the official implementation of a “buddy system,” which the L&I formally describes as “a system where individuals are paired or teamed up into work groups so each employee can be observed by at least one other member of the group to monitor and report signs and symptoms of heat-related illness.”

The buddy system was first introduced federally by the National Institute for Occupational Safety and Health – not as a standard or regulation, but as a suggestion for employers to follow. The federal government has not otherwise established a national heat-protection standard, leaving Washington and other states to set their own rules.

UFW’s Strater and other advocates argued that state officials should not expect workers to take on the extra responsibility of monitoring one another during heat events when they too may be at risk, or their ability to assess dangerous conditions may be limited. 

“We know that one of the first symptoms of serious illness is you begin to have cognitive problems, which means that your judgment is botched,” Strater said. “So you're now someone who was working extremely grueling, physically demanding work in 100-degree temperature[s] and before long they are going to have impaired judgment compared to the start of a shift.”

For workers like Lorena, who was already using the buddy system in the fields, the fear of retaliation can also undermine any approach that relies on workers to bring complaints against their employers. Strater said many believe being identified with a complaint could threaten their employer-provided housing – or, for those on H-2A visas, their immigration status. 

The Washington State Labor Council also warned that employers could use the buddy system to pass the blame for heat-protection violations on to workers.

“Shifting worksite safety and health responsibilities from the employer to the employees is a non-starter and needs to be avoided,” the council wrote. “Employees, some of whom are working piece-rate and are paid based on how much and how quickly they work, and do not necessarily share a language with their employer, cannot carry the sole burden of observing and reporting each other’s [heat-related illness] symptoms.”

Some employers, including government agencies, submitted comments stating that they did not know how they would implement a buddy system for employees who work alone, such as utility workers who often travel to remote locations. Other comments noted it could be difficult to pair workers from different agencies in response to emergency situations like wildfires. 

L&I officials responded that employers must ultimately ensure the system they use to monitor workers is effective and includes appropriate emergency protocols for responding to heat-related illnesses. 

“The ‘buddy system’ is one of several options for employers to closely observe employees for signs and symptoms of heat-related illness, which is important to help promptly detect symptoms and get medical help,” L&I told Crosscut. “The other options address situations where employees work alone.” 

Work heating up

Farmworker Justice, a national organization that advocates for migrant workers, warned L&I officials of a Union of Concerned Scientists report that the number of days each year in Washington with a heat index above 90 degrees may rise from four to as many as 17 in the decades to come. Officials should expect heat waves and wildfires to become a common threat to workers. 

“As climate change increases the frequency of extreme weather events, the need to strengthen Washington’s existing heat rule becomes more urgent,” the letter said.

L&I data shows heat-related claims across the state trending higher since 2013, rising from about 50-70 in previous years to often more than 100 claims in recent years. Workers in agriculture, firefighting and construction filed the most claims.

Despite disagreement over the newly proposed rules, Washington is still ahead of the federal government’s timeline in terms of establishing a permanent heat-protection order. 

Juley Fulcher, a worker health and safety advocate at Public Citizen, explained that the Occupational Safety and Health Administration’s process is especially lengthy – with a timeline of up to eight years in order to propose just one rule. The agency is currently at a halfway mark, having to go through one more assessment with the Small Business Administration and a final round of public comment.

Fulcher said that once OSHA does put out a ruling, it may be especially significant in terms of proactivity because having a national order would clearly establish protections regardless of an individual employer’s influence over their workers. 

Lorraine with L&I told Crosscut that the agency continues to review the comments submitted on the proposed rules, and will use that input to inform the permanent rule language. Any changes to the final rule language will be made public – and L&I can amend permanent rules through additional rulemaking processes if needed. 

L&I has also entered a public hearing period for a separate rulemaking process to establish permanent wildfire protections for outdoor workers, with a deadline for public comments of Aug. 4. 

Lorena said it’s hard to predict what difference the new rules might make until workers see how they are ultimately implemented and enforced.

“We’ll have to wait and see if it’s gonna actually be felt in the fields right,” she said, “if it’s gonna work this time.”