BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
AB 2346 (Butler) - Agricultural employee safety: heat related
illness.
Amended: August 6, 2012 Policy Vote: L&IR 5-0
Urgency: No Mandate: Yes
Hearing Date: August 6, 2012 Consultant:
Bob Franzoia
This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 2346 would prescribe duties on employers to
reduce the risk of heat illness among agricultural employees to
be enforced by the Division of Occupational Safety and Health
(DOSH) within the Department of Industrial Relations. This bill
would impose civil penalties, and create a private right of
action, for violations of these requirements. This bill would
require annual reporting to the Legislature regarding
enforcement of the requirements.
Fiscal Impact: Major costs annually to the Occupational Safety
and Health Fund in the Department of Industrial Relations.
The Occupational Safety and Health Fund sunsets July 1,
2013.
Background: Existing law permits the Occupational Safety and
Health Standards Board within the department to adopt
occupational health and safety standards to protect the welfare
of employees, and existing regulations provide for the
prevention of heat-related illness of employees, as prescribed.
Under existing law, it is a misdemeanor for an employer to
violate a safety standard if the violation has a substantial
probability of resulting in death or serious physical harm.
DOSH regulations for heat illness prevention apply to all places
of outdoor employment, specifically agricultural, construction,
landscaping, oil and gas extraction, and the movement of goods.
These regulations require:
- Employees must have access to potable drinking water. Where
drinking water is not plumbed or otherwise continuously
supplied, it shall be provided in sufficient quantity at the
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beginning of the work shift to provide one quart per employee
per hour for drinking for the entire shift.
- Employers may begin the shift with smaller quantities of water
if they have effective procedures for replenishment during the
shift as needed to allow employees to drink one quart or more
per hour. The frequent drinking of water must be encouraged.
- Shade must be present whenever the temperature is 85 degrees
or more, and the shade must be sufficient to accommodate 25
percent of the employees on the shift at any time, so that they
can sit in a normal posture fully in the shade without having to
be in physical contact with each other. The shaded area shall
be located as close as practicable to the areas where employees
are working;
- Employees shall be allowed and encouraged to take a cool-down
rest in the shade for a period of no less than five minutes at a
time when they feel the need to do so to protect themselves from
overheating. Such access to shade shall be permitted at all
times.
- The employer shall implement high-heat procedures when the
temperature equals or exceeds 95 degrees. This includes
improving ways of communicating between employees and
supervisors, requiring observation of employees for heat
illness, and the encouraging of water consumption.
- The employer must provide appropriate training to agricultural
workers on the risk of heat illness and appropriate emergency
response to heat illness when it occurs.
Proposed Law: This bill would establish broad statutory
requirements for all outdoor places of agricultural employment.
This bill would enact the following requirements with respect to
water:
- Each employee shall have continuous, ready access to fresh
water at 70 degrees or less, or the water shall contain ice, at
all times. The water shall be located not greater than 200 or
400 feet from any employee depending on crop configuration.
- Each employee shall be provided with a canteen or a cup for
his or her individual use for the temporary storage and drinking
of this water and encouraged to keep any canteen during work.
If using a cup, the cup must be between 8 ounces and 32 ounces.
- Where drinking water is not plumbed or otherwise continuously
supplied, it shall be provided in sufficient quantity at the
beginning of the work shift to provide at least one quart per
employee per hour for drinking for the entire shift. Water
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shall be available at all times in sufficient quantities to
provide at least one quart per employee per hour for the
remainder of the work shift.
- The frequent drinking of water shall be encouraged and
permitted. At no time shall any employer state or imply that
any employee will face any negative consequence for the frequent
drinking of water or for stopping work for such drinking of
water.
- Each employee shall be compensated for the time taken to
access water. For an employee working on a piece-rate basis,
such compensation shall be determined based upon their average
piece-rate wage during the pay period in which time was taken to
access water.
This bill would enact the following requirements with respect to
shade:
- The employer shall have and maintain one or more areas with
shade at all times while employees are present that is either
open to the air or provided with ventilation or cooling, as
specified. The shaded area shall be as close as practicable to
the areas where employees are working, and shall be at a
distance of not greater than 200 feet from any employee, or
within 400 feet under certain conditions.
- The amount of shade provided shall be enough to accommodate
all of the employees on the shift at any time, so that the
employees can all sit fully in the shade without having to be in
physical contact with each other. An employer shall provide
heating or ground covering sufficient to prevent each of the
employees from being in contact with bare soil and to insulate
each of the employees from the heat of the ground.
- Each employee shall be encouraged and permitted to take rest
breaks in the shade at any time when they feel the need to do so
to protect themselves from overheating, and at no time shall any
employer state or imply that any employee will face any negative
consequence for taking a rest break in the shade, as specified.
- Provides that an employee working on a piece-rate basis shall
be compensated at the employee's average piece-rate wage during
the pay period in which the rest break, rest period, or
cool-down rest period was taken.
Additionally, this bill:
- Requires the employer to implement additional high-heat
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procedures when the temperature equals or exceeds 80 degrees, as
specified, including 15 minute breaks every two hours and the
use of a buddy system.
- Requires a supervisor, if he or she observes, or any employee
reports, any signs of heat illness in an employer, to take
immediate action to alleviate the symptoms, as specified.
- Requires an employer to establish emergency response
procedures, as specified.
- Establishes specific training requirements for employees and
supervisors.
- Prohibits an employee from being discharged or penalized for
taking specified actions, including drinking water, taking a
break, or other actions reasonably calculated to prevent heat
illness.
Related Legislation: AB 2676 (Calderon) would make it a crime
for any person who directs an agricultural employee to perform,
or supervises an agricultural employee in the performance of,
outdoor work without providing the employee with shade and
potable water, punishable by imprisonment not exceeding six
months in a county jail, by a fine not exceeding $10,000, or by
both the imprisonment and fine, or if that violation results in
injury to an agricultural employee, by imprisonment not
exceeding one year in a county jail, by a fine not exceeding
$25,000, or by both that fine and imprisonment. That bill is
also on today's file.
Staff Comments: Current regulations require shade be present
whenever the temperature is 85 degrees or more and the employer
shall implement high heat procedures when temperatures are 95
degrees or above. Under this bill, when the temperature equals
or exceeds 80 degrees, the employer shall implement the above
noted high heat procedures.
The more specific nature of the shade, water and temperature
provisions of this bill over current regulations will require
new and more frequent enforcement specific to agricultural
workers. Field enforcement will take on greater complexity
combined with reduced compliance. Also elevating all heat
compliance to serious in nature will greatly increase appeal and
legal costs. The need for additional staff at all levels of the
department will result in major costs ongoing.
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