Heat and wildfire smoke rules in Oregon yield some citations, many OSHA complaints

Rules enacted this summer to protect workers from heat and wildfire smoke have resulted in hundreds of complaints and a handful of citations.

Advocates for farmworkers and growers say the response to the rules has been mixed and compliance has been imperfect.

But overall awareness has improved since last summer when a deadly heat wave killed 100 people, including a nursery worker.

"There is a general awareness," Jeff Stone, president of the Oregon Nursery Association, said. "Most of this is pretty common sense. But like anybody else in our lives, there's always that one person who doesn't have it. So for folks that are less aware, then these rules are instruction."

That is a softer position than Stone and ONA had last year, when the rules were being drafted. ONA and the Oregon Farm Bureau were critical of the permanent rules and wary of the impact they would have on farms.

"Aggies don't like being told what to do," Stone said. "And generally, I agree with them."

But farmworker advocates then and now say workers need extra protection from increasingly extreme weather.

Enforcement and fines

Oregon OSHA, the agency responsible for enforcing the heat and wildfire smoke rules, received 258 heat-related complaints as of Sept. 20. Of those complaints, 10 resulted in citations and fines.

Fines ranged from $150 to $675 per violation depending on the size of the business and severity of the violation. Penalty amounts are not based on actual outcomes, but on "risks represented by the underlying violation," OSHA spokesperson Aaron Corvin said.

Several businesses were fined for multiple offenses.

Most violations were for failing to have written heat stress prevention plans in place, including acclimatization and rest break plans. The heat rule requires each employer to provide such plans in writing.

There are still 62 open inspections related to "heat-related allegations," Corvin said.

"We expect many of those will result in citations for violations," he said.

Most heat-related inspections resulted from complaints made to Oregon OSHA, Corvin said. But inspectors also checked employers' heat plans during non-heat related inspections.

In some cases, the employer was able to correct the issue with an inspector on-site to avoid a citation.

One of the 10 companies penalized was related to agriculture.

M&M Potatoes in Hermiston received four citations totaling $650 for failing to provide a heat acclimatization plan, not including all required elements in its heat illness prevention plan, not providing heat illness prevention training to all employees and not providing sufficient drinking water when the heat index reached 80 degrees.

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Reluctance to report

Ira Cuello-Martinez, policy advocacy director for PCUN, said the relatively small number of citations issued overall does not necessarily indicate high compliance.

Farmworkers are less likely to report violations to Oregon OSHA for fear of losing their jobs or other retaliation, he said.

PCUN conducted a survey of 25 members in August to get a sense of how the rules were being enforced and understood. Of the 25 respondents, 21 said they would not report violations to OSHA. The remaining four said they might depending on the circumstances and severity.

Based on that survey and discussions with members, Cuello-Martinez said, the first summer has been "mixed."

"Some places are totally following the rules," he said.

Others aren't.

Rule details

The heat rule takes effect once the heat index reaches 80 degrees — a metric Stone said is excessive.

"Eighty degrees is a nice summer day," he said.

Once temperatures hit 80 degrees, employers are required to provide shade and water. Once the heat index reaches 90 degrees, employers are required to have a designated rest plan and monitor employees for signs of heat-related stress or illness.

Two-thirds of the respondents to the PCUN survey respondents said they had received some sort of training from employers about heat-related stress, which is one of the requirements of the heat rule. One-third reported they received none.

Employers were better about providing water, which is one of the stipulations of the heat rule. Twenty of the 25 respondents said they had access to cool water on their worksite. Two respondents said they did not have access to water at all. Three said they did have water, but it was either insufficient or not cool.

The most confusing part about the rule for both employers and employees was the break requirement. Under the new rule, employers are required to give employees breaks at a designated schedule once the temperature index reaches 90 degrees. The duration and frequency of breaks offered changes depending on how hot it is.

To avoid confusion, Cuello-Martinez and Stone both said many employees sent workers home early, before the heat index reached 90 degrees. Some workers started their days earlier to make up for it. Others lost wages, which Cuello-Martinez said was an expected but still concerning consequence.

"Over the last few years and this year specifically, folks are getting sent home early and losing income; they're worried about how they're going to pay for expenses if they're not working as much due to extreme heat," he said.

Smoke complaints were much fewer, Corvin said. There are no open inspections related to wildfire smoke and 13 complaints have been filed since the rule took effect in July.

"It's not entirely clear why the complaint activity has been low, but it's also not necessarily surprising," Corvin said. "As a potential workplace hazard, wildfire smoke tends to be region-specific and can taper off in terms of its potential to pose a genuine hazard as wind patterns shift and move smoke in certain directions."

Shannon Sollitt covers agricultural workers in the Mid-Willamette Valley as a corps member for Report for America, a program that aims to support local journalism and democracy by reporting on under-covered issues and communities. You may reach her at ssollitt@statesmanjournal.com.

This article originally appeared on Salem Statesman Journal: How well did OSHA's heat and smoke rules work in Oregon?