Bakersfield Californian: ‘Laws on the books aren’t the laws in the field’: US Senator Padilla, advocates seek national workplace heat protections

By John Donegan

On Aug. 8, a 59-year-old day laborer picking tomatillos on a farm in Fresno collapsed and died.

It was about 100 degrees that day — weeks into a series of “heat domes” that began in July and spanned the state, brutalizing those required to work outdoors.

Tony Botti, a spokesman for the Fresno County Coroner’s office, told CalMatters that Elidio Hernández, the tomatillo farmworker, died as a result of atherosclerotic cardiovascular disease, or clogged arteries, and that the heat did not play a factor.

“He told his supervisor he wasn’t feeling well,” said Teresa Romero, president of United Farm Workers. “His supervisor said to keep working. When he collapsed, nobody called 911. He died in the fields.”

After Hernández collapsed, Romero continued, the supervisor instructed other farmworkers to take Hernandez to the hospital. The incident, they claimed, was never reported. Hernández leaves behind two daughters.

“He should not have died,” Romero said. “Eladio deserved better. His family deserved better.”

And the unfortunate truth, dissected at a news conference Friday, is that California is one of only five states nationwide with a heat-illness prevention standard. According to some present, it’s regarded as “best practice” and referred to by union leaders in other states.

“I’m glad that the state of California is actually a leader in this space,” said U.S. Sen. Alex Padilla of California, who hosted the press conference. “But we need them on the federal level because workers across the country deserve the same protections.”

The Democrat recently reintroduced his bill, the Asunción Valdivia Heat, Illness, Injury and Fatality Prevention Act, which would require the Occupational Safety and Health Administration to create a nationwide heat standard for all workers in high heat environments. It borrows a lot from California’s existing standard — access to cool water and shade, paid breaks and medical services and training for heat-related illness — but it emphasizes education, for both workers and supervisors.

It also includes enforcement, through regular inspections, penalties and violations, something that some industry workers believe is missing even in California.

An August 2022 study by the University of California at Merced found that while California has existing OSHA rules in place to protect farmworkers, those rules are not always enforced.

Nearly half of the study’s participants said their employers did not provide any heat illness prevention plan, despite it being required by law; 15% said their employers did not provide adequate shade during breaks; and 36% said they would not report their employer for non-compliance, with most saying they feared retaliation.

And that’s for those with protections in place. It gets worse for indoor workers — electricians, construction workers, warehouse employees — who have fewer heat illness protections and are often overlooked.

“We work inside the places you guys may not see,” Lou Mondragon, a union representative for Communications Workers for America local 9416, adding that summer temperatures in some indoor spaces can jump to 150 F. “We work in the aisle ways and the rafters and corridors that are hidden from public view; therefore, they’re not air-conditioned.”

He regularly travels to other states, training unions on best practices for heat illness prevention. While visiting Pittsburgh, he encountered a glass worker there from New Mexico, who said that she complained the ice machine was molded and employees could taste it.

“This is a union represented employer,” Mondragon said. “The first response (of employers) was OK, we’ll just take it away.”

Mondragon said that the most important element is education, teaching workers that they have rights that can be exercised without fear of retaliation — which would be a violation of law.

“The education piece to this is paramount because we can have all the standards and books,” Mondragon said. “I was just introduced to a phrase today: the laws on the books aren’t the laws in the field.”

As the effects of climate change continue to alter the California landscape — and as the state stares south at what could be its first landfall hurricane — fires, drought and heat waves are putting millions of Americans under risk of heat-related illness or death.

“With climate change, these conditions are only getting worse,” Padilla said. “And yet there’s still no enforceable federal OSHA heat safety standard for workers … it is overdue.”

Padilla and 122 other legislators recently penned a letter asking President Joe Biden for support. Additionally, Padilla said he reached out to Speaker of the House Kevin McCarthy’s office, but has not yet heard a response.

“Speaker McCarthy, if you’re listening, we need your help,” Padilla said. “Workers need your help. Farmworkers need your help. Construction workers need your help. Utility workers need your help. We all need your help in getting something through the House of Representatives.”

In recent years, this already punishing environment has become even more extreme as climate change leads to more frequent days of dangerous heat. In July, Kern County had 11 days in which temperatures were 105 degrees or higher and 21 days with temperatures 100 degrees or above. Worldwide, it was the hottest month on record.

“Every day we fail to act is another day that someone is risking their life in their effort to provide for their family,” Padilla said.

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