Heat and smoke protections for WA farmworkers may fall short

While deaths and illnesses among agricultural workers mount, state regulators face pressure to do more to protect them.

A composite photo of an orchard and a woman standing in a field

A view of fruit orchards in Wapato, Yakima County, on June 26, 2019. (Jen Dev/Crosscut) Right: Elidia, a farmworker in eastern Washington, during a work day. (Courtesy photo)

Elidia was picking apples last year at a farm near Benton City in central Washington, when ash fell from the sky like rain, coating the trees and her face. Days of picking fruit in smoke so thick she could barely see gave her terrible headaches, the 44-year-old mother of three said.

This year, the record-breaking temperatures in June came as she harvested cherries, leaving her dizzy and so unsteady that she was afraid she might pass out.

Elidia has worked in restaurants and warehouses, but she has spent the past 11 years as an agricultural worker because she likes being outdoors, closer to nature. It makes her feel “free.” But she wishes there were better protections. “By the time you are at 100 degrees, it’s kind of unbearable,” she said. As for the smoke, she worries workers are inhaling it “all day.”

“The most appropriate thing to do is stop when the smoke is too intense,” said Elidia, who would not give her last name for fear of reprisals by her employer, through an interpreter.

Extreme heat and smoke can cause more than the discomfort Elidia felt; it can be fatal. Extreme heat can cause permanent disability and death as a result of heatstroke or by aggravating cardiovascular and respiratory disease. Agricultural workers die of heatstroke at a rate nearly 20 times greater than all U.S. civilian workers, according to the Centers for Disease Control and Prevention. Washington has, on average, 55 workers' compensation claims each year for heat-related illnesses, most in the agricultural sector, according to statistics kept by the state Department of Labor & Industries.

While Washington regulators created new rules to protect farmworkers who harvest during the heat and smoke, worker advocates say the protections fall far short of what’s necessary. Under the emergency rules, temperatures must break 100 degrees before employers are required to provide a paid cooling break, and air pollution must reach hazardous levels before farm owners must provide masks.

“The reality is that at 89 degrees, you are already getting into dangerous territory,” said Elizabeth Strater of the United Farm Workers labor union. “A worker's life is in peril at 99 degrees.”

For their part, farm owners, who are part of an agricultural industry that generates about 96,000 jobs in Washington, contend they’re already doing enough to protect workers. The leading agricultural lobbying group, the Washington Farm Bureau, has faulted state regulators for dragging their feet on the smoke rule and for rushing through the heat rules, the same ones that worker-safety advocates find inadequate.

State officials acted quickly in the wake of the early summer heat wave that pushed temperatures as high as 118 degrees in eastern Washington. They augmented existing regulations meant to protect agricultural and other outdoor workers from the heat. Most notably, the enhanced emergency rule, created July 9, added a new threshold of 100 degrees at which employers must provide a shaded area to cool down and 10-minute rest breaks every two hours.

A week later, the Department of Labor & Industries released a second emergency rule concerning wildfire smoke and outdoor workers. In a July 16 statement, the department noted that Washington is under a state of emergency, with wildfires already reported at “about double the normal rate.” The new rule directs employers to provide workers with protective masks, rest breaks and work schedule changes when the Air Quality Index reaches 151, a level described as “dangerously poor air quality” by state environmental regulators.

“Disappointing" is how Sarah Nagy, a lawyer at the public interest law firm Columbia Legal Services, described the wildfire smoke rule. Like the heat rule, it mimics the thresholds in California requiring employers to provide outdoor worker protections. “This is significantly less protective than expected,” she said.

Nagy, Strater, and farm owners were part of discussions about smoke protections that began after last year's robust wildfire season. In April, the state floated a version that required protections when the Air Quality Index reached 69, a level of pollution described by regulators as posing a moderate health hazard. When the published regulation set the threshold more than twice as high, advocates felt like there was a “bait and switch,” Strater said.

Farm owners, who in the past year had to implement several emergency rules over COVID-19 protections — notably around housing — may have mostly won the first round on these rules. Still, they're not entirely satisfied.

We “don't think it was necessary,” said Dominique Damian, a safety director at the Washington Farm Bureau, of the extreme heat rule. She objected to how quickly the state passed it without any opportunity for input from farmers. Nevertheless, she didn't think farmers would find compliance with the rule challenging. “Employers were already doing it,” she said.

Damian also expressed frustration with the wildfire smoke rule, which could change before it becomes a permanent standard. She said the Farm Bureau is pleased that the state landed on the higher air pollution level, which shouldn't be difficult to implement; farm owners, she said, were already providing workers with respirators or allowing them to wear their own.

‘Someone failed him, and he's dead'

Two recent farmworker deaths illuminate the dangers facing farmworkers.

On June 26, an Oregon blueberry picker, Sebastian Francisco Perez, was found unresponsive in a blueberry field. His death helped spur protections that kick in at significantly lower levels than Washington's. In Oregon, when the heat index is 80 degrees and above, employers must provide shade and drinking water. At 90 degrees, they must provide the protections that Washington put in place for 100 degrees: a 10-minute break every two hours in a shaded area.

Xaxira Ponce de León, a Columbia Legal Services staff attorney in Wenatchee, praised Oregon's rules. Unlike Washington’s, Oregon's rules consider what it feels like outside, weighing humidity as well as temperature, and kick in at a lower level. The Washington 100-degree threshold is “troubling,” she said, because it doesn't consider humidity, the angle of the sun and other factors.

Washington regulators looked to California's extreme heat rule for guidance because Oregon's wasn't out when they were formulating them, said Dina Lorraine, a Labor & Industries spokesperson. Lorraine said in an email that she expects regulators will “be looking at the temperature thresholds more closely” in the months ahead.

But the differences between the policies could be — and possibly already have been — a matter of life and death.

On July 29, Yakima hops worker Florencio Gueta Vargas, known to his family as Jose Cortez Avila, died in the fields outside town. The Yakima County coroner, Jim Curtice, found that heat contributed to his death. Curtice said that when sheriff’s deputies arrived at the scene sometime after 2 p.m., the temperature was 97 degrees. According to the AgWeatherNet, a website that provides farmers, gardeners, researchers and policymakers with weather and weather-related decision-support tools, the average temperature in Toppenish, outside Yakima, was 100.8 at 2 p.m.. State regulators are investigating the death and whether the farm owner followed the extreme heat rule requirements.

Strater said the disparity over several degrees shows the arbitrariness of the 100-degree threshold as a safe level. “Someone failed him,” the union organizer said, “and he's dead.”

Many farm owners have begun to move shifts to nighttime or early morning so that workers can avoid the worst of the heat, and crops that might be damaged by harvesting in extreme heat are protected. But that presents new dangers for workers not accustomed to starting the day at 2 a.m. or even 11 p.m.

“I spoke to workers who could barely stand up at the end of a shift,” said Victoria Ruddy, Pacific Northwest regional director of the United Farm Workers. Darkness and fatigue make it more dangerous for those working on ladders and around tractors. “All these things are a recipe for disaster,” Ruddy said.

Elidia worries about reaching into bushes at night when she can't see if there are snakes or spiders. She would prefer to work during the day, with stronger heat protections and time off during the worst of the wildfire smoke. While her bosses told workers they could go home during the extreme heat, she can't afford to take off work. Even if she could, she fears reprisals.

“I didn't go home because I'm always scared that if I do, I'll lose my job,” she said in Spanish, speaking through Ruddy, who interpreted. "Or when the workload gets lighter, I'll be one of the first to be sent home.”

Older, ill workers at risk

Wildfire smoke can lead to bronchitis, reduced lung function, heart failure and even early death. When the state released the rule, regulators noted that wildfire smoke is particularly dangerous because it “contains chemicals, gases and fine particles that can harm health,” as well as small particles that “can get deep into the lungs, worsening existing health conditions like asthma, negatively impacting heart health, and increasing the risk of death.”

The state Farm Bureau isn’t convinced of the harm from wildfire smoke. Damien, the Farm Bureau spokesperson, contended that studies on the effects of wildfire smoke on workers are still too “new.”

“Right now, we have not seen how wildfire smoke affects people in the workforce more so than people not in the workforce,” she said.

The state’s threshold for wildfire smoke reflects a choice to protect only the average worker. The Environmental Protection Agency has said air pollution at levels well below the standard set by the state poses a risk to people with heart or lung issues, as well as children, teens and older adults, like Vargas, whose age has been reported as 76 and 69.

“The employers have no obligation to provide protections to people” with health problems aggravated by air pollution, said Nagly, the Columbia Legal Services attorney.

Damian said more stringent protections aren’t necessary.

“If there is someone who is sensitive and has concerns — they're going to be taken care of,” Damian said. She argued the rule should be one that serves most workers, not one fashioned for the minority with health issues that leave them particularly vulnerable to smoke.

When it comes to enforcement of the two new rules, advocates are also concerned. The state's approach is largely reactive; Labor & Industries investigates once a complaint is filed. But many workers like Elidia are afraid to report their employers to the state.

Ruddy said she and others with the United Farm Workers reported dozens of violations last year.

“Not a single worker wanted to be identified,” Ruddy said. In one case, she said that the farm owners recognized the woman's voice on a video and “called her out.”

But Labor & Industries will have some extra muscle this year. In May, a new 16-member Agricultural Compliance Unit was launched to perform worksite inspections and investigate safety complaints. The team also does outreach and education with Spanish and English language materials to both employees and businesses.

"We have been talking about outdoor heat exposure since February and handing out heat-related safety handouts," Lorraine, the department spokesperson, said by email.

Despite these efforts and those of some farm owners — Elidia said her employer did give them educational information about symptoms — many workers are not hearing about the rules and do not understand their rights when working in extreme heat or in wildfire smoke.

Ponce de León, the Wenatchee lawyer, doesn't usually do worker outreach but said that changed with the looming heatwave in June. “I panicked when I realized we were two days away from 100-plus degree temperatures,” she said. She reached out to clients to find out if workers knew about the heat regulations. Even before the new rule, the state required employers to provide cool drinking water and breaks on hot days.

“My clients didn't know there was a heatwave coming and weren't told of their rights,” she said. “They're supposed to get a training in the beginning [of the season], and every time you go out in those temperatures.”

She quickly drew up a flyer and coordinated with other advocates to hand it out.

Ponce de León and others like Strater believe it's time to protect agricultural workers with legislation at the federal level. In the meantime, Ponce de León said the Immigrant and Latinx Solidarity Group is working with groups from Washington, Oregon and California to create a “Western Smoke & Heat Protection for Farmworkers Pact” recommendation similar to one created for COVID.

"Heat deaths are entirely preventable,” Strater said. “We know what causes them, what prevents them; it's not rocket science.”

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