Think Out Loud

Oregon’s rules to protect outdoor workers from heat tested this week

By Sage Van Wing (OPB)
July 27, 2022 12:06 a.m. Updated: July 29, 2022 8 p.m.

Broadcast: Friday, July 29

Last year, the Oregon Occupational Safety and Health Administration issued temporary rules aimed to protect people who work outdoors from extreme heat and smoke. This spring, the agency made those rules permanent. Ira Cuello Martinez, policy director for Pineros y Campesinos Unidos del Noroeste (PCUN), tells us what he has heard from farmworkers about the effect of the new rules.


The following transcript was created by a computer and edited by a volunteer:

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. We are now on day five of an ongoing heatwave that has blanketed the state of Oregon. It may not be quite as hot as last summer’s deadly heat dome, but it’s been relentless. There is one other big difference from last year. Oregon’s Occupational Safety and Health Administration, or OSHA, has put in permanent new rules to protect people who work outdoors from extreme heat and smoke. We were curious what difference these new rules are actually making for farm workers in Oregon, so we’ve invited Ira Cuello Martinez on. He is the policy director for PCUN, Oregon’s Farm Worker Union. Welcome to Think Out Loud.

Ira Cuello Martinez: Thanks for having me.

Miller: Can you remind us what these permanent rules now require of employers?

Cuello Martinez: With the new rules, there’s really two different activation points that people should be aware of. The rules are activated once the heat index reaches 80 degrees. I say heat index because there’s a difference between the dry air temperature that you often see on your weather app and heat index, [which] actually takes into account the humidity level. For instance, right now in Salem it’s 89° with 43% humidity. When you take into account the humidity, it actually feels like it’s 92°, so it’s a couple of degrees higher than what’s actually displayed in the weather app. Fortunately Oregon OSHA’s new rules do take into account these humidity levels. Once it reaches 80 degrees, there’s two different things that employers must do to ensure workers are working safely during hot temperatures: The first thing is that they must have access to clean and drinkable water. The second thing is having access to shade for breaks, for everyone to take a break under those shaded areas. Especially for people who work out in the fields and farm work, oftentimes you won’t actually see a lot of places to take a break in shaded areas. Sometimes you might see trees around the fields, but oftentimes folks have to crouch under bushes, next to cars and find any shaded area to really escape from the direct sunlight. So this second piece – having access to shade for their breaks – is a huge, huge victory for farm workers because that means now they will have to have either trees in their work sites or either canopies, tents or some other form of shaded structure to really be able to take a break from the direct sunlight. So, that’s the first activation trigger, at 80° heat index. Now, once it reaches 90°, which is what we’ve been experiencing over this last week, there’s a lot more protections that are added: First and foremost, workers have to follow a work/rest schedule. What that means is that once the temperature reaches 90° heat index, workers are able to take a 10-minute break every two hours. As the temperature continues to increase to 95°-100°, the breaks either have to increase in frequency or in length. It’s really up to the employer to decide what the breakdown looks like for the work/rest schedule, but that’s one of the first things that is activated at the 90° threshold. The other aspect of the activation at 90° is that the employer or supervisor has to have effective communication between the worker and the supervisor of the work site. That’s to communicate any symptoms of heat illness, or if anyone in the workplace, like a coworker, may be experiencing some symptoms, it’s good to communicate that information to the employer. There has to be an observation of the workers as well. This is a pretty crucial piece of the rule because, during last year’s historic and record-breaking heat wave, when the farm worker Sebastian Francisco Perez passed away in St. Paul laying down irrigation pipes during that heat wave, he was working by himself. Although he had passed out in the fields, if someone were to be observing him, or if there was a buddy or a coworker next to him, it would have been reported, and he would have received medical attention a lot sooner than what he actually did. The other piece of it also includes an emergency medical plan, an acclimatization plan so that workers can adjust the new weather conditions, and workers also have to receive training on these new heat rules: heat illness, heat injuries, symptoms, and how to protect themselves and take care of themselves when they’re experiencing any of those conditions.

Miller: Are they also being educated by employers on what employers are required to do?

Cuello Martinez: Yeah. Under the new heat rule, that’s actually one of the directions that employers must take. They must communicate to the workers that it’s the employer’s responsibility to provide water, to provide information about heat index, to provide shade, preventative rest breaks and access to emergency services. So all those different areas employers take responsibility for, and they have to communicate that responsibility to the workers under the training that they take prior to the heat season starting.


Miller: I imagine that– I don’t imagine, I know, we’re dealing with many different farm operators and contractors, sometimes sort of complicated relationships between the person who’s actually on site, the person who owns the land. Do you have a sense, when you put everything together, of the extent to which these new rules are actually being followed?

Cuello Martinez: We have heard mixed responses from our members around how these rules are actually playing out in the fields. We’ve heard from some workers that they are taking their breaks, they’re being encouraged to be drinking water and making sure that they communicate any symptoms of heat illness to their employer, to the supervisor, to the contractor, whoever is on that work site. But then we’ve also heard on the opposite spectrum where some workers were just completely unaware of the new rules. Or some of them might be aware of the rules, but the employers aren’t necessarily following them. So we have heard a mixed response around how these rules are playing out. It is definitely concerning to hear that some workers have not heard about it. And I’m not sure whether that’s due to the training really being brief and maybe receiving some documents or flyers about the rules or just like briefly talking about it before the shift starts and really just pressuring workers to get to work and get through the harvest season.

Miller: In general, do farm workers feel like they have the ability to come forward if they know about the rules, and they know that they’re not being followed?

Cuello Martinez: That’s a really crucial piece of making sure the rules are being enforced and implemented into every work site because there are some workers – or actually many farm workers – who actually have distrust or lack of faith and confidence in our state labor agency, Oregon OSHA, which it’s very unfortunate because we know that workers are able to submit complaints anonymously to prevent any retaliation or getting fired by the employer. But we’ve heard on multiple occasions that they haven’t seen a lot of follow-up or cases being resolved. Even if they do report the case that oftentimes they may even experience retaliation. So they prefer not to submit a complaint despite us at PCUN having a service available, highly encouraging our members to report any workplace violations that may be occurring. It’s really just a lack of faith and trust in our current labor agency, but we are working with Oregon OSHA to restore some of faith, to continue submitting these complaints and making sure that employers are being held responsible and accountable for breaking the rules and the law.

Miller: What does accountability look like? I mean, what are the potential penalties if OSHA were to find that an employer was not following these rules?

Cuello Martinez: That’s a great question. I actually don’t have that number on the top of my head. But I do know that during the previous administrator’s… the Oregon OSHA administrator, one of the things that they were proud about is that Oregon OSHA actually has one of the lowest penalty rates in the country, which, for us as advocates and as worker advocates, is not necessarily something we should be proud of because that means that it’s more of a ‘cost of doing business’ rather than actually taking the issue more seriously and making sure that the workplace is safe for the workers in this excessive heat or wildfire smoke that may be present. So I am not clear on what the numbers look like, but I do know that it’s not as high as we would like to see them.

Miller: Just briefly – we have about 50 seconds left. How do Oregon’s rules now compare to Washington or California?

Cuello Martinez: Oregon’s rules [are] actually the strongest rules in the country. We are very happy to see that Oregon OSHA really took a step in leadership to… for other states to model what rules we have here in Oregon and even push for a federal standard to make sure that these rules are applied throughout every single state regardless of what their government looks like. So Oregon OSHA really did take a step forward. Making sure that it’s the heat index rather than the dry air temperature was a huge victory for us. And then just the very basic rights of having access to water, shade, breaks; so just the main and most effective ways to keep a worker’s body cooled down and prevent them from experiencing heat illness or heat injury.

Miller: Ira Cuello Martinez, thanks so much.

Cuello Martinez: Yeah, of course.

Miller: That’s Ira Cuello Martinez, policy director for PCUN.

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