Existing law establishes a workers compensation system to compensate employees for injuries sustained in the course of their employment. Existing law creates a disputable presumption that specified injuries sustained in the course of employment of a specified member of law enforcement or a specified first responder arose out of and in the course of employment. Existing law authorizes the Department of Industrial Relations to expend moneys that have been appropriated for the administration and enforcement of laws under its jurisdiction, as well as for the maintenance of any commission or office of the department, as specified.

Existing law establishes the Workers Compensation Administration Revolving Fund within the State Treasury. Existing law requires the director to levy a surcharge upon employers in order to fund, among other things, the Workers Compensation Administration Revolving Fund. Upon appropriation by the Legislature, existing law authorizes funds to be expended for, among other things, the Return-to-Work Program and the enforcement of the insurance coverage program.

This bill would create a disputable presumption that a heat-related injury that develops within a specified timeframe after working outdoors for an employer in the agriculture industry that fails to comply with heat illness prevention standards, as defined, arose out of and came in the course of employment. The bill would require the appeals board to find in favor of the employee if the employer fails to rebut the presumption. The bill would specify that compensation awarded for heat-related injury to farmworkers is to include, among other things, medical treatment and disability. The bill would establish the Farmworker Climate Change Heat Injury and Death Fund that would consist of a one-time transfer of $5,000,000 derived from nongeneral funds of the Workers Compensation Administration Revolving Fund for the purpose of administrative costs associated with this presumption. The bill would make related findings and declarations.

Existing law establishes a workers compensation system to compensate employees for injuries sustained in the course of their employment. Existing law creates a disputable presumption that specified injuries sustained in the course of employment of a specified member of law enforcement or a specified first responder arose out of and in the course of employment. Existing law authorizes the Department of Industrial Relations to expend moneys that have been appropriated for the administration and enforcement of laws under its jurisdiction, as well as for the maintenance of any commission or office of the department, as specified.

Existing law establishes the Workers Compensation Administration Revolving Fund within the State Treasury. Existing law requires the director to levy a surcharge upon employers in order to fund, among other things, the Workers Compensation Administration Revolving Fund. Upon appropriation by the Legislature, existing law authorizes funds to be expended for, among other things, the Return-to-Work Program and the enforcement of the insurance coverage program.

This bill would create a disputable presumption that a heat-related injury that develops within a specified timeframe after working outdoors for an employer in the agriculture industry that fails to comply with heat illness prevention standards, as defined, arose out of and came in the course of employment. The bill would require the appeals board to find in favor of the employee if the employer fails to rebut the presumption. The bill would specify that compensation awarded for heat-related injury to farmworkers is to include, among other things, medical treatment and disability. The bill would establish the Farmworker Climate Change Heat Injury and Death Fund that would consist of a one-time transfer of $5,000,000 derived from nongeneral funds of the Workers Compensation Administration Revolving Fund for the purpose of administrative costs associated with this presumption. The bill would make related findings and declarations.

Existing law establishes a workers compensation system to compensate employees for injuries sustained in the course of their employment. Existing law creates a disputable presumption that specified injuries sustained in the course of employment of a specified member of law enforcement or a specified first responder arose out of and in the course of employment. Existing law authorizes the Department of Industrial Relations to expend moneys that have been appropriated for the administration and enforcement of laws under its jurisdiction, as well as for the maintenance of any commission or office of the department, as specified.

Existing law establishes the Workers Compensation Administration Revolving Fund within the State Treasury. Existing law requires the director to levy a surcharge upon employers in order to fund, among other things, the Workers Compensation Administration Revolving Fund. Upon appropriation by the Legislature, existing law authorizes funds to be expended for, among other things, the Return-to-Work Program and the enforcement of the insurance coverage program.

This bill would create a disputable presumption that a heat-related injury that develops within a specified timeframe after working outdoors for an employer in the agriculture industry that fails to comply with heat illness prevention standards, as defined, arose out of and came in the course of employment. The bill would require the appeals board to find in favor of the employee if the employer fails to rebut the presumption. The bill would specify that compensation awarded for heat-related injury to farmworkers is to include, among other things, medical treatment and disability. The bill would establish the Farmworker Climate Change Heat Injury and Death Fund that would consist of a one-time transfer of $5,000,000 derived from nongeneral funds of the Workers Compensation Administration Revolving Fund for the purpose of administrative costs associated with this presumption. The bill would make related findings and declarations.

 VETO  

Bill No: SB 1299

Author: Cortese (D), et al.

Enrolled: 8/30/24

Vote: 27

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 4-1, 4/10/24

AYES: Smallwood-Cuevas, Cortese, Durazo, Laird

NOES: Wilk

SENATE JUDICIARY COMMITTEE: 9-2, 4/23/24

AYES: Umberg, Allen, Ashby, Caballero, Durazo, Gonzalez, Laird, Min, Wahab

NOES: Wilk, Niello

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/16/24

AYES: Caballero, Ashby, Becker, Bradford, Wahab

NOES: Jones, Seyarto

SENATE FLOOR: 29-9, 5/22/24

AYES: Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NOES: Alvarado-Gil, Dahle, Grove, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

NO VOTE RECORDED: Allen, Archuleta

ASSEMBLY FLOOR: 60-16, 8/28/24 - See last page for vote

SUBJECT: Farmworkers: benefits

SOURCE: United Farm Workers

DIGEST:

This bill creates a workers’ compensation presumption, disputable by an agricultural employer, that an outdoor agricultural worker’s injury is heat-related if the employer fails to comply with heat illness standards.

ANALYSIS:

Existing law:

1. Defines an “employer” as:
   1. The State and every State agency;
   2. Each county, city, district, and all public and quasi-public corporations and public agencies therein;
   3. Every person including any public service corporation, which has any natural person in service; or
   4. The legal representative of any deceased employer. (Labor Code §3300)
      
2. Establishes the Division of Workers’ Compensation (Division) and Workers’ Compensation Appeals Board (WCAB) within the Department of Industrial Relations and charges it with monitoring the administration of workers’ compensation claims and providing administrative and judicial services to assist in resolving disputes that arise in connection with claims for workers’ compensation benefits. (Labor Code §3200)
   
3. Creates the Workers’ Compensation Administration Revolving Fund (Fund) for the administration of the workers’ compensation program, the Return-to-Work Program, and the enforcement of the insurance coverage program established by the Labor Commissioner. (Labor Code §62.5)
   
4. Requires every employer to carry workers’ compensation insurance through an insurer or by self-insuring with the consent of the Department of Industrial Relations. (Labor Code §3700)
   
5. Charges WCAB with determining whether an employer has violated a Division of Occupational Safety and Health (Cal/OSHA) safety order and making specified findings regarding the manner in which it was violated, the cause of injury or death, and that the safety order was known to, and violated by the employer or their representative. (Labor Code §4551-4553.1)
   
6. Specifies that upon knowledge of an injury, the employer or their agent shall provide a workers’ compensation claim to the injured employee and within one working day of the claim filing, shall authorize medical treatment up to $10,000 for 90 days or until the claim is rejected. (Labor Code §5402)
   
7. Creates various disputable presumptions for specified public safety employees. (Labor Code §§3212, 3212.1, 3212.5, 3212.6, 3212.7, 3212.85, 3212.9, 3212.10, 3212.12, 3213, 3213.3)
   
8. Establishes Cal/OSHA within the Department of Industrial Relations to, among other things, propose, administer, and enforce occupational safety and health standards. (Labor Code §§6300 et seq.)
   
9. Requires Cal/OSHA to investigate the employment or place of employment, with or without notice or hearings if it learns or has reason to believe that an employment or place of employment is unsafe or injurious to the welfare of an employee. If Cal/OSHA receives a complaint from an employee or an employee’s representative that their employment or place of employment is not safe, it shall, with or without notice or hearing, summarily investigate the complaint of serious violation within three working days. (Labor Code §6309)
   
10. Establishes heat illness prevention standards applicable to agriculture and the transportation or delivery of agricultural products, as specified. Standards include:
    1. Provision of cool potable water as close as practicable to areas where employees work;
    2. Access to shade, with ventilation of cooling when temperatures exceed 80 degrees Fahrenheit (F);
    3. Implementation of high heat procedures when temperatures equal or exceed 95 F;
    4. Assurance of a ten minute per two hour cool down break when temperatures exceed 95 F, which may be taken with a meal break or rest period;
    5. Implementation of emergency response procedures and effective communication by voice, observation, or electronic means is maintained;
    6. Observation of employees during temperatures of 80 F and above to monitor acclimatization;
    7. Employee and supervisor training on heat illness detection, prevention, and occurrence; and
    8. Establishment, implementation, and maintenance of a heat illness prevention plan, either as part of the employer’s written Injury and Illness Program or maintained in a separate document. (8 CCR §3395, Labor Code §6721)
       
11. Requires the Labor and Workforce Development Agency, on or before July 1, 2023, to establish an advisory committee to study and evaluate the effects of heat on California’s workers, businesses, and the economy. The advisory committee shall submit a report of its findings to the Legislature by January 1, 2026. (Government Code §15562.5)
    

This bill:

1. Provides that these provisions apply to an employer, as defined in Section 3300 of the Labor Code, and in the agricultural industry listed and covered in Section 3395 of Title 8 of the California Code of Regulations.
2. Provides that an agricultural employee’s heat-related injury, illness, or death shall be presumed to arise out of and in the course of employment should the agricultural employer fail to comply with heat illness prevention standards set forth in Labor Code §6721 and §3395 of Title 8 of the California Code of Regulations.
   
3. Defines “injury” to include any heat-related injury, illness, or death that develops or manifests after the employee was working outdoors during or within the pay period in which an employee suffers any heat-related illness, injury, or death.
   
4. Establishes, for administrative costs, the Farmworker Climate Change Heat Injury and Death Fund (Fund) consisting of a one-time transfer of five million dollars derived from the Workers’ Compensation Administration Revolving Fund for purposes of the administrative costs relative to the provisions of this bill.
   
5. Makes various findings and declarations related to the intent of this bill and the conditions faced by farmworkers in relation to climate change.

Background

Workers’ Compensation. Workers’ compensation benefits provide employees with the medical treatment needed to recover from work related injury or illnesses, partially replace the wages lost while they recover, and help them return to work. Workers’ compensation benefits do not include damages for pain and suffering or punitive damages. The Division of Workers' Compensation (DWC) monitors the administration of workers' compensation claims, and provides administrative and judicial services to assist in resolving disputes that arise in connection with claims for workers' compensation benefits.

When a non-public sector employee acquires a work-related injury or illness (injury), the employer or their agent must offer medical treatment as soon as they have knowledge of the injury and provide a claim form to the employee for them to fill out and file. Upon filing, the employer or their workers’ compensation insurer has 90 days to deny the claim, at which time the injury is presumed to be compensable. Additionally, within one working day of the employee filing the claim, the employer must authorize up to $10,000 in medical treatment until the claim is accepted or rejected.

Heat Standards. Existing Cal/OSHA regulations establish a heat illness standard that applies to all outdoor places of employment, with “high-heat procedures” (when the temperature exceeds 95 degrees) applicable to the agriculture, construction, landscaping, oil and gas extraction and hauling industries. An employer must: (1) provide access to potable drinking water; (2) provide access to shade and preventative cool-down rests; (3) as a high-heat procedure, observe employees for alertness and heat illness symptoms and remind employees of related rights; (4) establish emergency response procedures; (5) closely observe employees during a heat wave; (6) provide related training for supervisory and non-supervisory employees; and (7) develop an in-language heat illness prevention plan available to employees upon request.

Climate Change. As noted by the first policy committee analysis of this bill “as climate change increases exposure to elevated summertime heat, the number of unsafe outdoor work days is estimated to increase each year.^[1] While this does not prohibit work on hot days, it does necessitate an awareness by employers in order to modify work schedules accordingly.”

[NOTE: Please see the Senate Labor, Public Employment and Retirement Committee analysis on this bill for more background information and information on prior and related legislation.]

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee:

1. One-time cost pressures of $5 million to transfer monies to the Fund (WCARF).
2. Annual costs of an amount in the millions of dollars to the Division of Workers’ Compensation (DWC) and WCAB to administer the presumption (Fund and WCARF). This bill proposes the transfer of $5 million to pay administrative costs, but the amount would not be sufficient to support ongoing costs. Although data shows presumptions are rarely rebutted, the presumption created by this bill is unique, as the presumption applies only if the agricultural employer has violated existing heat standards. Accordingly, an employer may be more likely to offer a rebuttal and WCAB would need to determine whether a violation occurred, resulting in significant new workload. Cal/OSHA may also incur ongoing costs to advise DWC and WCAB on heat standards.

SUPPORT: (Verified 10/7/24)

United Farm Workers (Source)

Attorney General Rob Bonta
California Food and Farming Network
California Labor Federation
California Professional Firefighters
California Rural Legal Assistance Foundation
Californians for Pesticide Reform
Central California Environmental Justice Network
Central Coast Alliance United for A Sustainable Economy
Centro Binacional Para El Desarrollo Indigena Oaxaqueño
Cleanearth4kids.org
County of Santa Clara
CPCA Advocates, Subsidiary of The California Primary Care Association
Pesticide Action Network North America
United Food and Commercial Workers, Western States Council

OPPOSITION: (Verified 10/7/24)

African American Farmers of California
Agricultural Council of California
American Property Casualty Insurance Association
Association of California Egg Farmers
Brea Chamber of Commerce
Building Owners and Managers Association
California Association of Joint Powers Authorities
California Association of Wheat Growers
California Association of Winegrape Growers
California Bean Shippers Association
California Business Properties Association
California Chamber of Commerce
California Coalition on Workers Compensation
California Cotton Ginners and Growers Association
California Farm Bureau
California Fresh Fruit Association
California Grain and Feed Association
California League of Food Producers
California Pear Growers Association
California Seed Association
California State Floral Association
California Strawberry Commission
Carlsbad Chamber of Commerce
City of La Verne
Corona Chamber of Commerce
Cupertino Chamber of Commerce
Danville Area Chamber of Commerce
Family Business Association of California
Family Winemakers of California
Fontana Chamber of Commerce
Garden Grove Chamber of Commerce
Greater Coachella Valley Chamber of Commerce
Greater Conejo Valley Chamber of Commerce
Greater High Desert Chamber of Commerce
Huntington Beach Chamber of Commerce
Imperial Valley Regional Chamber of Commerce
LA Canada Flintridge Chamber of Commerce
Lodi District Chamber of Commerce
Long Beach Area Chamber of Commerce
Modesto Chamber of Commerce
NAIOP California
National Federation of Independent Business
Newport Beach Chamber of Commerce
Nisei Farmers League
Pacific Egg & Poultry Association
Rancho Mirage Chamber of Commerce
Redondo Beach Chamber of Commerce
San Pedro Chamber of Commerce
Santa Maria Valley Chamber of Commerce
Santee Chamber of Commerce
Simi Valley Chamber of Commerce
South Bay Association of Chambers of Commerce
Southwest California Legislative Council
Tri County Chamber Alliance
Tulare Chamber of Commerce
West Ventura County Business Alliance
Western Agricultural Processors Association
Western Growers Association

ARGUMENTS IN SUPPORT: According to the sponsor, United Farm Workers, “There is an increasing number of farm worker heat-related injuries, illnesses, and deaths, as climate change raises temperatures. From 2018 to 2019, the number of suspected and confirmed farm worker heat-related deaths increased approximately 130 percent… Additionally, farm workers face a climate of fear. According to the United States Department of Labor, approximately 77 percent of farm workers were born outside the United States and many do not speak English. Fear of retaliation and being fired for work-related injuries strongly discourage farm workers from reporting heat-related injuries or violations by their employers. SB 1299 will promote agricultural employer consideration of the climate change heat-related needs of farm workers and do whatever is necessary to prevent injury, illness, and death. It would also ensure farm workers and their families receive appropriate and timely benefits authorized by existing law. The bill does not change any existing heat-related regulation or workers’ compensation benefit.”

ARGUMENTS IN OPPOSITION: A coalition of employers and insurers, including the California Chamber of Commerce oppose this bill. They write in opposition noting, “the bill does not include mechanics as far as how establishing applicability of the presumption would work. The bill does not specify how it would be determined that an employer did in fact violate the applicable provisions of heat illness prevention standard. If the bill contemplates that determination being made by the Workers Compensation Appeals Board (WCAB), we have strong concerns with imparting that responsibility on an entity that specializes in workers’ compensation claims, not workplace safety.”

GOVERNOR'S VETO MESSAGE:

This bill would establish a presumption, for purposes of a workers' compensation claim, that a worker's heat-related injury arose out of their employment if their employer failed to comply with the Division of Occupational Safety and Health (Cal/OSHA)'s heat illness prevention standards.

There is no doubt that climate change is causing an increase in extreme temperatures and that California farmworkers need strong protections from the risk of heat-related illness. However, the creation of a heat-illness presumption in the workers' compensation system is not an effective way to accomplish this goal. Current laws establishing, regulating, and enforcing heat illness prevention standards fall under the jurisdiction of Cal/OSHA, not the Division of Workers' Compensation, and the workers' compensation system is not equipped to make determinations about employers' compliance with Cal/OSHA standards.

My administration is protecting Californians from the perils of extreme heat. Our Extreme Heat Action Plan is a comprehensive multi-year strategy to strengthen community resiliency through partnerships and investments in equitable solutions to protect all Californians - especially vulnerable populations such as farmworkers and other outdoor workers. Two years ago, I signed AB 1643 (Rivas) which brings together labor, business, academic, and government stakeholders to study the effects of heat on California's workers, businesses, and the economy. The AB 1643 advisory committee began meeting last June to study the underreporting of heat illnesses and injuries among low-income employees, and methods for minimizing the effect of heat on workers. I also recently signed SB 1105 providing for use of accrued paid sick leave for outdoor agricultural workers to avoid smoke, heat, or flooding conditions created by a local or state emergency.

Cal/OSHA also prioritizes protections for vulnerable workers, especially farmworkers. To bolster enforcement, Cal/OSHA is establishing a new Agricultural Unit that specializes in worker protections and hazards found at agricultural worksites and is opening three new district office locations in Fresno, Santa Barbara, and Riverside. This dedicated unit will increase Cal/OSHA's reach to farmworker communities throughout the Central Valley, where the largest number of farmworkers and their families reside.

Cal/OSHA and the Labor and Workforce Development Agency continue their efforts to increase public awareness to ensure that workers, especially farmworkers, have access to critical and timely information on how to protect themselves from heat illness. Through the California Workforce Outreach Project, our state's labor agencies have partnered with community-based organizations to inform workers of their rights under California labor laws. This program is in its fourth year and has reached tens of thousands of workers through labor rights clinics, door-to-door canvassing, and multilingual messaging.

Finally, through the Rural Strategic Engagement Program, we are creating spaces in farmworker communities where agricultural workers will be able to obtain information about their rights, file claims or complaints, and get access to legal assistance. This is part of our commitment to engage local partners, including labor and community-based organizations, to reduce obstacles in reporting violations by agricultural workers.

I stand firmly committed to continuing to work with the Legislature, and worker advocates, on strengthening safety and health enforcement strategies to ensure aggrieved workers can come forward without fear of retaliation. However, conditioning a workers' compensation presumption on compliance with standards set and enforced by another regulatory division is not an effective way to improve working conditions.

For these reasons, I cannot sign this bill.

ASSEMBLY FLOOR: 60-16, 8/28/24

AYES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Waldron, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Alanis, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Gallagher, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Wallis

NO VOTE RECORDED: Cervantes, Ortega, Villapudua

Prepared by: Alma Perez-Schwab / L., P.E. & R. / (916) 651-1556

10/16/24 14:18:24

**** END ****

1. Your Area WorkHeat, Climate CHIP, https://www.climatechip.org/your-area-heat-effects ↑

SENATE THIRD READING

STR Bill Id:SB 1299

Author:(Cortese)

As Amended Ver:March 21, 2024

Majority vote

SUMMARY

Creates a rebuttable presumption that a heat-related injury arose out of the course of employment where an employer in the agriculture injury, as defined, failed to comply with existing heat standards.

Major Provisions

1. Provides that these provisions apply to an employer, as defined in Section 3300, and in the agriculture industry listed and covered in Section 3395 of Title 8 of the California Code of Regulations.
2. Provides that an employee's heat-related injury, illness, or death shall be presumed to arise out of and in the course of employment if the employer fails to comply with heat illness prevention standards, as provided.
3. Requires the Workers' Compensation Appeals Board (WCAB) to find in accordance with the presumption unless controverted by other evidence.
4. Defines "injury" to include any heat-related injury, illness, or death that develops or manifests after the employee was working outdoors during or within the pay period in which an employee suffers any heat-related illness, injury, or death.
5. Requires compensation awarded under the provisions of this bill to include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by workers compensation law.
6. Establishes the Farmworker Climate Change Heat Injury and Death Fund that would consist of a one-time transfer of $5 million from the Workers’ Compensation Administration Revolving Fund for the purpose of administrative costs relative to the provisions of this bill.
7. Makes various findings and declarations related to the intent of this bill and the conditions faced by farmworkers in relation to climate change.

COMMENTS

At its core, like other complex systems of justice, the California workers' compensation system is based on a very simple premise. If a worker is injured on a job, the employer must pay for the worker's medical treatment, including monetary benefits if the injury is permanent. In return for receiving free medical treatment, the worker surrenders the right to sue the employer for monetary damages in civil court. As a matter of law, employers have the opportunity to rebut the presumption, and establish that the injury or condition was not the result of employment. As a practical matter, however, presumptions are rarely rebutted.

Presumptions benefit the worker by removing a potential hurdle to treatment and minimizing the delay between a worker's injury and their ability to receive care. Historically, presumptions have also been useful for occupational injuries whose causes could be difficult to precisely pinpoint; this was the case in presumptions for cancer in firefighters, who may have been exposed from any number of burning or crumbling buildings.

This bill takes a novel approach to presumptions in that it only requires the presumption to apply if the agricultural employer has violated CalOSHA heat illness prevention standards. The presumption in this bill would only be triggered in those instances where an agricultural employer was found to have violated the heat illness prevention standards. Therefore, before the presumption applies WCAB would need to determine, as a matter of fact, whether CalOSHA heat illness standards were violated by the agricultural employer. Under existing presumptions WCAB does not make a determination of fact before the presumption applies – the presumption applies as soon as the injury occurs at which time the employer can then attempt to rebut it.

As discussed more below, it is unclear whether WCAB's role in making the determination required under this bill would cause potential conflicts with CalOSHA's own investigation and determination related to whether heat illness standard were violated. An argument can be made that a workers' compensation presumption would help ensure employer compliance with the CalOSHA heat illness prevention standards. However, presumptions have never been used to incentivize behavior or in a punitive manner. This would be another departure from the traditional approach and rationale for presumptions.

Additionally this bill would expand presumptions to the private sector. With very narrow exceptions for privately employed firefighters for public facilities, presumptions of compensability have been granted only to public safety officers – fire and peace officer employees. Thus, the costs of presumptions are borne only by state and local government employers, and only for the narrow class of employee, broadly referred to as public safety employees, whose jobs regularly place them in harm's way.

The only other time presumptions have been expanded to the private sector is under the narrow, temporary circumstances for the COVID-19 presumption, which sunset on January 1, 2024. (SB 1159 (Hill) Chapter 18, Statutes of 2020; AB 1751 (Daly) Chapter 758, Statutes of 2022)

Issues related to WCAB. This bill would require WCAB to make a factual determination of whether CalOSHA heat illness standards have been violated before the presumption applies. It is unclear what would happen if WCAB has to make their determination while the CalOSHA board is also considering a potential violation and making their own determination, and in that event what happens if WCAB’s determination is contrary to the one made by CalOSHA. This could create ongoing confusion related to the heat illness standards and how they are interpreted and applied.

Additionally, while WCAB has some existing authority to determine if an employer has violated CalOSHA this happens in the context of compensation determinations. Therefore, while WCAB has some familiarity with CalOSHA standards it is generally not their role to determine if a violation of CalOSHA standards have occurred. The principal core function of WCAB is to serve as the statewide administrative law court of appeal for workers’ compensation claims. Generally, WCAB only hears those claims that are appealed following a decision by a DWC administrative law judge. Therefore, this bill would grant additional authority and responsibilities to WCAB.

CalOSHA enforcement of heat illness standards. It is not being disputed that California's heat illness prevention standards likely have contributed to some decrease in heat illness since they were first implemented in 2005; however, many growers continue to be out of compliance with these requirements. The author asserts that part of why farmworkers are still suffering from heat-related illness and death is because growers are not following California's heat illness prevention standards.

In 2019, CalOSHA conducted more than 4,000 heat-related inspections, and cited employers for noncompliance with the heat illness prevention standards in 47% of the inspections. However, complicating the state’s ability to conduct inspections for enforcement and compliance are the persistent issues with staffing and funding faced by CalOSHA.

Employers are currently subject to various penalties for CalOSHA violations. On January 1, 2024, CalOSHA increased penalties for certain violations. According to DIR, for citations issued on or after January 1, 2024, the maximum penalties for violations classified as Regulatory, General, Willful, or Repeat are as follows:

1. The maximum penalty for General and Regulatory violations, including Posting and Recordkeeping violations is $15,873.
2. The maximum penalty for Willful and Repeat violations is $158,727.
3. The minimum penalty for Willful violations is $11,337.

It is unclear to what extent these penalties are levied and collected. Considering many employers continue to not comply with heat illness prevention standards it is also not clear if the penalties are serving as an appropriate deterrent.

According to the Author

Some of the largest agricultural counties in the state are experiencing record-breaking heat waves. In 2022, King City in Monterey County broke its hottest temperature ever recorded at 116 degrees. Fresno recorded an all-time high at 114 degrees. The increased frequency of extreme heat conditions, and its growing risks to workers, highlight the importance and necessity of employer compliance with California's outdoor heat regulations to keep workers safe. SB 1299 promotes compliance with the existing outdoor heat regulation through a rebuttable presumption for heat-related injury and death. Farm workers who suffer injury, illness, or death while working for a noncompliant employer will be treated and compensated expeditiously.

Importantly, it does not introduce any new workers' compensation benefits beyond what is already provided for under existing laws. Furthermore, its provisions do not extend to employers who are already in compliance.

Arguments in Support

The United Farm Workers, the sponsor of this bill, write in support saying: "SB 1299 will promote agricultural employer consideration of the climate change heat-related needs of farm workers and do whatever is necessary to prevent injury, illness, and death. It would also ensure farm workers and their families receive appropriate and timely benefits authorized by existing law. The bill does not change any existing heat-related regulation or workers' compensation benefit."

Arguments in Opposition

A coalition of employers and insurers, including the California Chamber of Commerce oppose this bill. They write in opposition noting, "The bill does not include mechanics as far as how establishing applicability of the presumption would work. The bill does not specify how it would be determined that an employer did in fact violate the applicable provisions of heat illness prevention standard. If the bill contemplates that determination being made by the Workers Compensation Appeals Board (WCAB), we have strong concerns with imparting that responsibility on an entity that specializes in workers' compensation claims, not workplace safety."

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. One-time cost pressures of $5 million to transfer monies to the Fund (WCARF).
2. Annual costs of an amount in the millions of dollars to the Division of Workers’ Compensation (DWC) and WCAB to administer the presumption (Fund and WCARF). This bill proposes the transfer of $5 million to pay administrative costs, but the amount would not be sufficient to support ongoing costs. Although data shows presumptions are rarely rebutted, the presumption created by this bill is unique, as the presumption applies only if the agricultural employer has violated existing heat standards. Accordingly, an employer may be more likely to offer a rebuttal and WCAB would need to determine whether a violation occurred, resulting in significant new workload. Cal/OSHA may also incur ongoing costs to advise DWC and WCAB on heat standards.

VOTES

SENATE FLOOR: 29-9-2

YES: Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Alvarado-Gil, Dahle, Grove, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

ABS, ABST OR NV: Allen, Archuleta

ASM INSURANCE: 12-3-0

YES: Calderon, Alvarez, Bauer-Kahan, Berman, McKinnor, Lee, Lowenthal, Ortega, Petrie‑Norris, Blanca Rubio, Valencia, Wood

NO: Chen, Joe Patterson, Wallis

ASM APPROPRIATIONS: 11-3-1

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

NO: Sanchez, Dixon, Ta

ABS, ABST OR NV: Jim Patterson

UPDATED

VERSION: March 21, 2024

CONSULTANT: Claire Wendt / INS. / (916) 319-2086 FN: 0003952

Date of Hearing: August 7, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

SBPCA Bill Id:SB 1299

Author:(Cortese) – As Amended Ver:March 21, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill creates a rebuttable presumption that a heat-related injury meeting certain conditions arose out of the course of employment when an agricultural employer failed to comply with existing heat standards.

Specifically, this bill:

1. Provides that if an employer in the agriculture industry fails to comply with the Division of Occupational Safety and Health’s (Cal/OSHA’s) outdoor heat illness prevention standard, any resulting heat-related injury to the employee is presumed to arise out of the course of employment. The Workers’ Compensation Appeals Board (WCAB) must find in favor of the employee if the employer fails to rebut the presumption.
2. Establishes the Farmworker Climate Change Heat Injury and Death Fund (Fund) to pay costs related to administering the heat injury presumption and requires the Fund to consist of a one-time transfer of $5 million from non-general funds of the Workers’ Compensation Administration Revolving Fund (WCARF).

FISCAL EFFECT:

1. One-time cost pressures of $5 million to transfer monies to the Fund (WCARF).
2. Annual costs of an amount in the millions of dollars to the Division of Workers’ Compensation (DWC) and WCAB to administer the presumption (Fund and WCARF). This bill proposes the transfer of $5 million to pay administrative costs, but the amount would not be sufficient to support ongoing costs. Although data shows presumptions are rarely rebutted, the presumption created by this bill is unique, as the presumption applies only if the agricultural employer has violated existing heat standards. Accordingly, an employer may be more likely to offer a rebuttal and WCAB would need to determine whether a violation occurred, resulting in significant new workload. Cal/OSHA may also incur ongoing costs to advise DWC and WCAB on heat standards.

COMMENTS:

1. Purpose. According to the author:

The increased frequency of extreme heat conditions, and its growing risks to workers, highlight the importance and necessity of employer compliance with California’s outdoor heat regulations to keep workers safe. SB 1299 promotes compliance with the existing outdoor heat regulation through a rebuttable presumption for heat-related injury and death. Farm workers who suffer injury, illness, or death while working for a noncompliant employer will be treated and compensated expeditiously.

1. Support and Opposition. This bill is sponsored by the United Farm Workers, which argues this bill “will promote agricultural employer consideration of the climate change heat-related needs of farm workers” and “does not change any existing heat-related regulation or workers’ compensation benefit.” This bill is also supported by other labor organizations and agricultural community groups.

This bill is opposed by a coalition of business groups led by the California Chamber of Commerce, which argues “the presumption would apply even in situations where any link between the employer’s conduct and a heat-related illness or injury is tangential, at best, and appears to mandate that WCAB evaluate employer compliance with regulations created by a different state agency.”

1. Background.

Heat Standards. Existing Cal/OSHA regulations establish a heat illness standard that applies to all outdoor places of employment, with “high-heat procedures” (when the temperature exceeds 95 degrees) applicable to the agriculture, construction, landscaping, oil and gas extraction and hauling industries. An employer must: (a) provide access to potable drinking water; (b) provide access to shade and preventative cool-down rests; (c) as a high-heat procedure, observe employees for alertness and heat illness symptoms and remind employees of related rights; (d) establish emergency response procedures; (e) closely observe employees during a heat wave; (f) provide related training for supervisory and non-supervisory employees; and (g) develop an in-language heat illness prevention plan available to employees upon request.

Rebuttable Presumption. A presumption of compensability in the workers’ compensation system reflects unique circumstances when an injury or illness appears to logically be work-related, but is difficult for the injured worker to prove the condition is work-related. The absence of a presumption does not mean an employee does not qualify for benefits, but that the employee must prove the injury is work-related to qualify.

This bill creates a rebuttable presumption that a heat-related injury meeting certain conditions arose out of the course of employment when an agricultural employer failed to comply with Cal/OSHA heat standards. Thus, a finding of whether an employer violated heat rules would need to be determined for WCAB to fully adjudicate a claim. As noted in the Assembly Insurance Committee’s analysis of this bill:

[I]t is unclear whether WCAB’s role in making the determination required under this bill would cause potential conflicts with CalOSHA’s own investigation and determination related to whether heat illness standard were violated.

An argument can be made that a workers’ compensation presumption would help ensure employer compliance with the CalOSHA heat illness prevention standards. However, presumptions have never been used to incentivize behavior or in a punitive manner. This would be another departure from the traditional approach and rationale for presumptions.

1. Related Legislation. SB 391 (Blakespear) includes skin cancer as a workers’ compensation injury for state game wardens and park rangers and provides a rebuttable presumption that such a diagnosis arose out of the course of employment. SB 391 was vetoed by Governor Newsom, who stated, “A presumption is not required for an occupational disease to be compensable…presumptions should be provided sparingly and should be based on the unique hazards or proven difficulty of establishing a direct relationship between a disease or injury and the employee’s work.”

Analysis Prepared by: Irene Ho / APPR. / (916) 319-2081

Date of Hearing: June 26, 2024

ASSEMBLY COMMITTEE ON INSURANCE

Lisa Calderon, Chair

SBPCA Bill Id:SB 1299

Author:(Cortese) – As Amended Ver:March 21, 2024

SENATE VOTE: 29-9

SUBJECT: Farmworkers: benefits

SUMMARY: Creates a rebuttable presumption that a heat-related injury arose out of the course of employment where an employer in the agriculture injury, as defined, failed to comply with existing heat standards. Specifically, this bill:

1. Provides that these provisions apply to an employer, as defined in Section 3300, and in the agriculture industry listed and covered in Section 3395 of Title 8 of the California Code of Regulations.
2. Provides that an employee’s heat-related injury, illness, or death shall be presumed to arise out of and in the course of employment if the employer fails to comply with heat illness prevention standards, as provided.
   
3. Requires the Workers’ Compensation Appeals Board (WCAB) to find in accordance with the presumption unless controverted by other evidence.
4. Defines “injury” to include any heat-related injury, illness, or death that develops or manifests after the employee was working outdoors during or within the pay period in which an employee suffers any heat-related illness, injury, or death.
5. Requires compensation awarded under the provisions of this bill to include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by workers compensation law.
   
6. Establishes the Farmworker Climate Change Heat Injury and Death Fund that would consist of a one-time transfer of $5 million from the Workers’ Compensation Administration Revolving Fund for the purpose of administrative costs relative to the provisions of this bill.
   
7. Makes various findings and declarations related to the intent of this bill and the conditions faced by farmworkers in relation to climate change.

EXISTING LAW:

1. Establishes a workers’ compensation system that provides benefits to an employee who suffers from an injury or illness that arises out of, and in the course of, employment, irrespective of fault. This system requires all employers to secure payment of benefits by either securing the consent of the Department of Industrial Relations (DIR) to self-insure or by securing insurance against liability from an insurance company duly authorized by the state. (California Constitution Article XIV, Section 4)
2. Establishes presumptions that certain injuries or conditions are work-related for specified public safety officers. Those injuries or conditions that are presumed to be work-related for specified public safety officers include:
   
   1. Cancer;
   2. Heart trouble, pneumonia, or hernia;
   3. Tuberculosis;
   4. Exposure to a biochemical substance; or
   5. Meningitis.

The compensation awarded for these injuries must include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by workers compensation law. These presumptions tend to run for 5 to 10 years commencing on their last day of employment, depending on the injury and the peace officer classification involved. Peace officers whose principal duties are clerical, such as stenographers, telephone operators, and other office workers are excluded. (Labor Code Sections (LAB) 3212 to 3213.2)

1. Provides that the presumptions listed above are rebuttable and may be controverted by evidence. However, unless controverted, the WCAB must find in accordance with the presumption. (LAB 3212 to 3213.2)
2. Defines an “employer” as:
   1. The State and every State agency;
   2. Each county, city, district, and all public and quasi-public corporations and public agencies therein;
   3. Every person including any public service corporation, which has any natural person in service; or
   4. The legal representative of any deceased employer. (LAB 3300)
      
3. Provides that an employer in the agriculture industry is subject to the provisions of the heat illness standards. (8 CCR Section 3395)
4. Establishes the Division of Workers’ Compensation (DWC) and WCAB within DIR and charges it with monitoring the administration of workers’ compensation claims and providing administrative and judicial services to assist in resolving disputes that arise in connection with claims for workers’ compensation benefits. (LAB 3200)
   
5. Creates the Workers’ Compensation Administration Revolving Fund for the administration of the workers’ compensation program, the Return-to-Work Program, and the enforcement of the insurance coverage program established by the Labor Commissioner. (LAB 62.5)
   
6. Requires every employer to carry workers’ compensation insurance through an insurer or by self-insuring with the consent of DIR. (LAB 3700)
   
7. Specifies that upon knowledge of an injury, the employer or their agent shall provide a workers’ compensation claim to the injured employee and within one working day of the claim filing, shall authorize medical treatment up to $10,000 for 90 days or until the claim is rejected. (LAB 5402)
   
8. Establishes the Division of Occupational Safety and Health (CalOSHA) within DIR to, among other things, propose, administer, and enforce occupational safety and health standards. (LAB 6300 et seq.)
   
9. Requires CalOSHA to investigate the employment or place of employment, with or without notice or hearings if it learns or has reason to believe that an employment or place of employment is unsafe or injurious to the welfare of an employee. If CalOSHA receives a complaint from an employee or an employee’s representative that their employment or place of employment is not safe, it shall, with or without notice or hearing, summarily investigate the complaint of serious violation within three working days. (LAB 6309)
   
10. Establishes heat illness prevention standards applicable to agriculture and the transportation or delivery of agricultural products, as specified. Standards include:
    1. Provision of cool potable water as close as practicable to areas where employees work;
    2. Access to shade, with ventilation of cooling when temperatures exceed 80 degrees Fahrenheit (F);
    3. Implementation of high heat procedures when temperatures equal or exceed 95 F;
    4. Assurance of a ten minute per two hour cool down break when temperatures exceed 95 F, which may be taken with a meal break or rest period;
    5. Implementation of emergency response procedures and effective communication by voice, observation, or electronic means is maintained;
    6. Observation of employees during temperatures of 80 F and above to monitor acclimatization;
    7. Employee and supervisor training on heat illness detection, prevention, and occurrence; and
    8. Establishment, implementation, and maintenance of a heat illness prevention plan, either as part of the employer’s written Injury and Illness Program or maintained in a separate document. (8 CCR Section 3395; LAB 6721)
       
11. Requires the Labor and Workforce Development Agency, on or before July 1, 2023, to establish an advisory committee to study and evaluate the effects of heat on California’s workers, businesses, and the economy. The advisory committee shall submit a report of its findings to the Legislature by January 1, 2026. (Government Code Section 15562.5)
    

FISCAL EFFECT: Unknown.

COMMENTS:

1. Purpose. According to the author:

Some of the largest agricultural counties in the state are experiencing record-breaking heat waves. In 2022, King City in Monterey County broke its hottest temperature ever recorded at 116 degrees. Fresno recorded an all-time high at 114 degrees. The increased frequency of extreme heat conditions, and its growing risks to workers, highlight the importance and necessity of employer compliance with California’s outdoor heat regulations to keep workers safe. SB 1299 promotes compliance with the existing outdoor heat regulation through a rebuttable presumption for heat-related injury and death. Farm workers who suffer injury, illness, or death while working for a noncompliant employer will be treated and compensated expeditiously.

Importantly, it does not introduce any new workers’ compensation benefits beyond what is already provided for under existing laws. Furthermore, its provisions do not extend to employers who are already in compliance.

1. Workers’ compensation and presumptions broadly. At its core, like other complex systems of justice, the California workers’ compensation system is based on a very simple premise. If a worker is injured on a job, the employer must pay for the worker’s medical treatment, including monetary benefits if the injury is permanent. In return for receiving free medical treatment, the worker surrenders the right to sue the employer for monetary damages in civil court. This simple premise, sometimes known as the “grand bargain,” has stood the test of time for more than 100 years and served California remarkably well – according to recent research of the California Workers’ Compensation Institute (CWCI) and RAND, more than 90% of all workers’ compensation claims and requests for medical treatment are approved.

In a discussion about the expansion of presumptions within the workers’ compensation system, it is important to understand what presumptions are and what they do. Presumptions, in essence, shift the dynamic of a claim from a worker having the burden of proving that their injury is work-related to an employer having the burden to prove the injury is not work-related.

Presumptions have never been intended to create work-related injuries when, in fact, the injuries in question are not work-related. Rather, presumptions of compensability have been adopted, some many decades ago, to reflect unique circumstances where injuries or illnesses appear to logically be work-related, but it is difficult for the injured worker to prove it is work-related. There has clearly been some slippage over time from a rigorous application of this rationale, but it remains the underlying premise of presuming injuries or illnesses to be work-related.

As a matter of law, employers have the opportunity to rebut the presumption, and establish that the injury or condition was not the result of employment. As a practical matter, however, presumptions are rarely rebutted.

Presumptions benefit the worker by removing a potential hurdle to treatment and minimizing the delay between a worker’s injury and their ability to receive care. Historically, presumptions have also been useful for occupational injuries whose causes could be difficult to precisely pinpoint; this was the case in presumptions for cancer in firefighters, who may have been exposed from any number of burning or crumbling buildings.

There is, however, a limit to what presumptions can actually accomplish. There is virtually no difference between an employee who accesses workers’ compensation with a presumption and without one; that is to say, a presumption alone does not increase the quality of care that is received and within industries with a low rate of rejected workers’ compensation claims, there is little positive benefit. On the other hand, removing an employer’s ability to put claims through the normal process of medical verification has the potential to incentivize fraud, since that verification process’s main purpose is to determine whether an injury is occupational.

1. How the presumption created by this bill is different. This bill takes a novel approach to presumptions in that it only requires the presumption to apply if the agricultural employer has violated CalOSHA heat illness prevention standards. The presumption in this bill would only be triggered in those instances where an agricultural employer was found to have violated the heat illness prevention standards. Therefore, before the presumption applies WCAB would need to determine, as a matter of fact, whether CalOSHA heat illness standards were violated by the agricultural employer. Under existing presumptions WCAB does not make a determination of fact before the presumption applies – the presumption applies as soon as the injury occurs at which time the employer can then attempt to rebut it.

As discussed more below, it is unclear whether WCAB’s role in making the determination required under this bill would cause potential conflicts with CalOSHA’s own investigation and determination related to whether heat illness standard were violated.

An argument can be made that a workers’ compensation presumption would help ensure employer compliance with the CalOSHA heat illness prevention standards. However, presumptions have never been used to incentivize behavior or in a punitive manner. This would be another departure from the traditional approach and rationale for presumptions.

Additionally this bill would expand presumptions to the private sector. With very narrow exceptions for privately employed firefighters for public facilities, presumptions of compensability have been granted only to public safety officers – fire and peace officer employees. Thus, the costs of presumptions are borne only by state and local government employers, and only for the narrow class of employee, broadly referred to as public safety employees, whose jobs regularly place them in harm’s way.

The only other time presumptions have been expanded to the private sector is under the narrow, temporary circumstances for the COVID-19 presumption, which sunset on January 1, 2024. (SB 1159 (Hill) Chapter 18, Statutes of 2020; AB 1751 (Daly) Chapter 758, Statutes of 2022)

1. Issues related to WCAB. As previously mentioned, this bill would require WCAB to make a factual determination of whether CalOSHA heat illness standards have been violated before the presumption applies. It is unclear what would happen if WCAB has to make their determination while the CalOSHA board is also considering a potential violation and making their own determination, and in that event what happens if WCAB’s determination is contrary to the one made by CalOSHA. This could create ongoing confusion related to the heat illness standards and how they are interpreted and applied.

Additionally, while WCAB has some existing authority to determine if an employer has violated CalOSHA this happens in the context of compensation determinations. Therefore, while WCAB has some familiarity with CalOSHA standards it is generally not their role to determine if a violation of CalOSHA standards have occurred. The principal core function of WCAB is to serve as the statewide administrative law court of appeal for workers’ compensation claims. Generally, WCAB only hears those claims that are appealed following a decision by a DWC administrative law judge. Therefore, this bill would grant additional authority and responsibilities to WCAB.

It should also be noted that WCAB is currently facing an increased workload that has resulted in a backlog of cases. As a result, this year WCAB submitted a budget change proposal (BCP) requesting additional positions just to deal with the current backlog. According to the BCP, as of June 30, 2023 WCAB backlog totaled 745 cases. It is unclear how the additional workload this bill requires of WCAB would impact the existing workload issues at WCAB. The BCP only requests enough additional positions to enable WCAB to manage the existing workload and reduce the size and average age of the case backlog.

1. CalOSHA enforcement of heat illness standards. It is not being disputed that California’s heat illness prevention standards likely have contributed to some decrease in heat illness since they were first implemented in 2005; however, many growers continue to be out of compliance with these requirements. The author asserts that part of why farmworkers are still suffering from heat-related illness and death is because growers are not following California’s heat illness prevention standards.

In 2019, CalOSHA conducted more than 4,000 heat-related inspections, and cited employers for noncompliance with the heat illness prevention standards in 47 percent of the inspections. However, complicating the state’s ability to conduct inspections for enforcement and compliance are the persistent issues with staffing and funding faced by CalOSHA.

The author notes that this bill, by helping ensure compliance, could further reduce the amount of heat illness incidents and adverse health outcomes among California’s farmworkers. However, there have been prior and ongoing efforts to ensure compliance with limited success and it is unclear if this bill would have the desired effect of encouraging compliance.

Employers are currently subject to various penalties for CalOSHA violations. On January 1, 2024, CalOSHA increased penalties for certain violations. According to DIR, for citations issued on or after January 1, 2024, the maximum penalties for violations classified as Regulatory, General, Willful, or Repeat are as follows:

• The maximum penalty for General and Regulatory violations, including Posting and Recordkeeping violations is $15,873.
• The maximum penalty for Willful and Repeat violations is $158,727.
• The minimum penalty for Willful violations is $11,337.

It is unclear to what extent these penalties are levied and collected. Considering many employers continue to not comply with heat illness prevention standards it is also not clear if the penalties are serving as an appropriate deterrent.

In 2009, the United Farm Workers (UFW) sued the state of California and CalOSHA claiming that the state had failed to adequately protect the safety of farmworkers and ensure compliance with its heat regulations. (Bautista v. State of California (2009), No. BC418871) It brought a second lawsuit in 2012. Both lawsuits were settled in 2015, with CalOSHA agreeing to revise its policies and procedures for completing inspections more quickly and taking action against repeat violators, allow the UFW and the UFW Foundation through a memorandum of understanding with the state to report and refer potential violations to CalOSHA, conduct confidential internal audits of CalOSHA, taking farmworker testimony in the field during heat inspections, and focus on outdoor workplaces during periods of high heat, among other commitments.

As a result of this settlement, CalOSHA updated its heat illness prevention standards. However, since these lawsuits were settled the state has continued to experience record-breaking heat due to climate change and farmworker heat injuries and deaths have continued to occur.

1. Recent legislation.
2. AB 2264 (Arambula) of 2024, would require an employee to obtain and maintain a heat illness prevention training certification from CalOSHA within 30 days after the date of hire and require an employer to reimburse the employee for training time. This bill was held in the Assembly Committee on Labor and Employment.
3. SB 391 (Blakespear) of 2023, would have granted certain peace officers of the Department of Fish and Wildlife and the Department of Parks and Recreation the presumption that skin cancer is a work-related condition for purposes of making a workers’ compensation claim, unless the presumption is rebutted. This bill was vetoed by Governor Newsom.
4. SB 632 (Laird) Chapter 621, Statutes of 2023, extended the sunset, until January 1, 2029, for the existing presumption that a diagnosis of post-traumatic stress disorder (PTSD) for specified peace officers and firefighters is an occupational injury.
5. AB 699 (Weber) of 2023, would have granted to year-round, full-time lifeguards employed by the City of San Diego in the Boating Safety Unit the same workers' compensation presumptive coverages currently afforded to firefighters and public safety officers. This bill was vetoed by Governor Newsom.
6. AB 1145 (Maienschein) of 2023, would have extended an industrial injury rebuttable presumption for a diagnosis of a PTSD to certain state nurses, psychiatric technicians, and various medical social services specialists. This bill was vetoed by Governor Newsom.
7. AB 1751 (Daly) Chapter 758, Statutes of 2022, extended the January 1, 2023, sunset date for the existing COVID-19 workers' compensation presumptions until January 1, 2024.
8. AB 1643 (Rivas) Chapter 263, Statutes of 2022, required, on or before July 1, 2023, the Labor and Workforce Development Agency to establish an advisory committee of specified representatives to evaluate and recommend the scope of a study on the effects.
9. AB 2676 (Calderon) of 2012, would have made it a clear misdemeanor, punishable by jail time and fines, for failure to provide water and shade, as specified, to employees. This bill was vetoed by Governor Brown.
10. AB 2346 (Butler) of 2012, would have, among other things, made growers and the farm labor contractors they hire jointly liable for failure to supply farm workers with shade and water. This bill was vetoed by Governor Brown.
11. Arguments in support. The Farmworker Advocacy Working Group write in support of this bill saying, “SB 1299 will promote agricultural employer consideration of the climate change heat-related needs of farm workers and do whatever is necessary to prevent injury, illness, and death. It would also ensure farm workers and their families receive appropriate and timely benefits authorized by existing law. The bill does not change any existing heat-related regulation or workers’ compensation benefit.”
12. Arguments in opposition. A coalition of employers and insurers, including the California Chamber of Commerce oppose this bill. They write in opposition noting, “the bill does not include mechanics as far as how establishing applicability of the presumption would work. The bill does not specify how it would be determined that an employer did in fact violate the applicable provisions of heat illness prevention standard. If the bill contemplates that determination being made by the Workers Compensation Appeals Board (WCAB), we have strong concerns with imparting that responsibility on an entity that specializes in workers’ compensation claims, not workplace safety.”

REGISTERED SUPPORT / OPPOSITION:

Support

California Food and Farming Network

Californians for Pesticide Reform

Central California Environmental Justice Network

Central Coast Alliance United for A Sustainable Economy

Centro Binacional Para El Desarrollo Indigena Oaxaqueño (CBDIO)

Pesticide Action Network

United Food and Commercial Workers, Western States Council

Opposition

Agricultural Council of California

American Property Casualty Insurance Association

Association of California Egg Farmers

Brea Chamber of Commerce

Building Owners and Managers Association

California Association of Joint Powers Authorities

California Association of Wheat Growers

California Association of Winegrape Growers

California Bean Shippers Association

California Business Properties Association

California Chamber of Commerce

California Coalition on Workers Compensation

California Cotton Ginners and Growers Association

California Farm Bureau

California Fresh Fruit Association

California Grain and Feed Association

California League of Food Producers

California Pear Growers Association

California Seed Association

California State Floral Association

California Strawberry Commission

Carlsbad Chamber of Commerce

Corona Chamber of Commerce

Cupertino Chamber of Commerce

Danville Area Chamber of Commerce

Family Business Association of California

Family Winemakers of California

Fontana Chamber of Commerce

Garden Grove Chamber of Commerce

Greater Coachella Valley Chamber of Commerce

Greater Conejo Valley Chamber of Commerce

Greater High Desert Chamber of Commerce

Huntington Beach Chamber of Commerce

Imperial Valley Regional Chamber of Commerce

LA Canada Flintridge Chamber of Commerce

Lodi District Chamber of Commerce

Long Beach Area Chamber of Commerce

Modesto Chamber of Commerce

Naiop California

National Federation of Independent Business

Newport Beach Chamber of Commerce

Nisei Farmers League

Pacific Egg & Poultry Association

Rancho Mirage Chamber of Commerce

Redondo Beach Chamber of Commerce

San Pedro Chamber of Commerce

Santa Maria Valley Chamber of Commerce

Santee Chamber of Commerce

Simi Valley Chamber of Commerce

South Bay Association of Chambers of Commerce

Southwest California Legislative Council

Tri County Chamber Alliance

Tulare Chamber of Commerce

West Ventura County Business Alliance

Western Agricultural Processors Association

Western Growers Association

Analysis Prepared by: Claire Wendt / INS. / (916) 319-2086

 THIRD READING  

Bill No: SB 1299

Author: Cortese (D)

Amended: 3/21/24

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 4-1, 4/10/24

AYES: Smallwood-Cuevas, Cortese, Durazo, Laird

NOES: Wilk

SENATE JUDICIARY COMMITTEE: 9-2, 4/23/24

AYES: Umberg, Allen, Ashby, Caballero, Durazo, Gonzalez, Laird, Min, Wahab

NOES: Wilk, Niello

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/16/24

AYES: Caballero, Ashby, Becker, Bradford, Wahab

NOES: Jones, Seyarto

SUBJECT: Farmworkers: benefits

SOURCE: United Farm Workers

DIGEST: This bill creates a workers’ compensation presumption, disputable by an agricultural employer, that an outdoor agricultural worker’s injury is heat-related if the employer fails to comply with heat illness standards.

ANALYSIS:

Existing law:

1. Defines an “employer” as:
   1. The State and every State agency;
   2. Each county, city, district, and all public and quasi-public corporations and public agencies therein;
   3. Every person including any public service corporation, which has any natural person in service; or
   4. The legal representative of any deceased employer. (Labor Code §3300)
      
2. Establishes the Division of Workers’ Compensation (Division) and Workers’ Compensation Appeals Board (WCAB) within the Department of Industrial Relations and charges it with monitoring the administration of workers’ compensation claims and providing administrative and judicial services to assist in resolving disputes that arise in connection with claims for workers’ compensation benefits. (Labor Code §3200)
   
3. Creates the Workers’ Compensation Administration Revolving Fund (Fund) for the administration of the workers’ compensation program, the Return-to-Work Program, and the enforcement of the insurance coverage program established by the Labor Commissioner. (Labor Code §62.5)
   
4. Requires every employer to carry workers’ compensation insurance through an insurer or by self-insuring with the consent of the Department of Industrial Relations. (Labor Code §3700)
   
5. Charges WCAB with determining whether an employer has violated a Division of Occupational Safety and Health (Cal/OSHA) safety order and making specified findings regarding the manner in which it was violated, the cause of injury or death, and that the safety order was known to, and violated by the employer or their representative. (Labor Code §4551-4553.1)
   
6. Specifies that upon knowledge of an injury, the employer or their agent shall provide a workers’ compensation claim to the injured employee and within one working day of the claim filing, shall authorize medical treatment up to $10,000 for 90 days or until the claim is rejected. (Labor Code §5402)
   
7. Creates various disputable presumptions for specified public safety employees. (Labor Code §§3212, 3212.1, 3212.5, 3212.6, 3212.7, 3212.85, 3212.9, 3212.10, 3212.12, 3213, 3213.3)
   
8. Establishes Cal/OSHA within the Department of Industrial Relations to, among other things, propose, administer, and enforce occupational safety and health standards. (Labor Code §§6300 et seq.)
   
9. Requires Cal/OSHA to investigate the employment or place of employment, with or without notice or hearings if it learns or has reason to believe that an employment or place of employment is unsafe or injurious to the welfare of an employee. If Cal/OSHA receives a complaint from an employee or an employee’s representative that their employment or place of employment is not safe, it shall, with or without notice or hearing, summarily investigate the complaint of serious violation within three working days. (Labor Code §6309)
   
10. Establishes heat illness prevention standards applicable to agriculture and the transportation or delivery of agricultural products, as specified. Standards include:
    1. Provision of cool potable water as close as practicable to areas where employees work;
    2. Access to shade, with ventilation of cooling when temperatures exceed 80 degrees Fahrenheit (F);
    3. Implementation of high heat procedures when temperatures equal or exceed 95 F;
    4. Assurance of a ten minute per two hour cool down break when temperatures exceed 95 F, which may be taken with a meal break or rest period;
    5. Implementation of emergency response procedures and effective communication by voice, observation, or electronic means is maintained;
    6. Observation of employees during temperatures of 80 F and above to monitor acclimatization;
    7. Employee and supervisor training on heat illness detection, prevention, and occurrence; and
    8. Establishment, implementation, and maintenance of a heat illness prevention plan, either as part of the employer’s written Injury and Illness Program or maintained in a separate document. (8 CCR §3395, Labor Code §6721)
       
11. Requires the Labor and Workforce Development Agency, on or before July 1, 2023, to establish an advisory committee to study and evaluate the effects of heat on California’s workers, businesses, and the economy. The advisory committee shall submit a report of its findings to the Legislature by January 1, 2026. (Government Code §15562.5)
    

This bill:

1. Provides that an agricultural employee’s heat-related injury, illness, or death shall be presumed to arise out of and in the course of employment should the agricultural employer fail to comply with heat illness prevention standards set forth in Labor Code §6721 and §3395 of Title 8 of the California Code of Regulations.
   
2. Defines “injury” to include any heat-related injury, illness, or death that develops or manifests after the employee was working outdoors during or within the pay period in which an employee suffers any heat-related illness, injury, or death.
   
3. Establishes, for administrative costs, the Farmworker Climate Change Heat Injury and Death Fund (Fund) consisting of a one-time transfer of five million dollars derived from the Fund for administrative costs relative to the provisions of this bill.
   
4. Makes various findings and declarations, including:
   
   1. The intent and purpose of this act is to prevent increasing farmworker heat-related injury, illness, and death, as climate change raises temperatures. It is the intent of the Legislature that all agricultural employers consider the climate change heat-related needs of farmworkers and do whatever is necessary to prevent injury, illness, and death, consistent with existing laws and regulations. It is not the intent of this act to change any existing heat-related regulation.
   2. Farmworkers are facing climate change in a climate of fear as heat-related injury, illness, and death increases.
   3. The largest agricultural counties in California are experiencing record-breaking heat waves.

Background

Workers’ Compensation

When a non-public sector employee acquires a work-related injury or illness (injury), the employer or their agent must offer medical treatment as soon as they have knowledge of the injury and provide a claim form to the employee for them to fill out and file. Upon filing, the employer or their workers’ compensation insurer has 90 days to deny the claim, at which time the injury is presumed to be compensable. Additionally, within one working day of the employee filing the claim, the employer must authorize up to $10,000 in medical treatment until the claim is accepted or rejected.

Climate Change

As climate change increases exposure to elevated summertime heat, the number of unsafe outdoor work days is estimated to increase each year.^[1] While this does not prohibit work on hot days, it does necessitate an awareness by employers in order to modify work schedules accordingly.

Heat Fatalities and Reporting

Between 2002 and 2004, two heat-related fatalities were reported in the agricultural industry. In 2005, heat illness prevention and response legislation was introduced. Assembly Bill 805 (Chu, 2005) would have required Cal/OSHA to adopt a standard for heat illness prevention and response for the agricultural industry by December 1, 2006, and for employees in other at-risk outdoor occupations by December 1, 2007.

In July 2005, four farm workers - Salud Zamudio Rodriguez, Ramon Hernandez, Augstine Gudino, and Constantino Cruz Hernandez - died of heat illness. In August 2005, Cal/OSHA issued an emergency regulation modeled after AB 805, which applies to outdoor places of employment such as agriculture, construction, landscaping, oil and gas extraction, and the transportation and delivery of agricultural products, construction materials, and other heavy items.

In 2014, 13 farm workers died after working in the fields.^[2] Between 2008 and 2014, Cal/OSHA investigated 55 farm worker deaths.^[3] Since then, Cal/OSHA has acknowledged heat illness incidents are underreported. Of the 209 farm worker illnesses investigated during this timeframe, Cal/OSHA confirmed 97 as heat related.

On May 1, 2015, revised heat illness prevention standards took effect. The revised standard established additional requirements for the provision of and access to water and shade and created additional obligations during periods that high-heat procedures are required. The revised standard also included new language regarding emergency response procedures, acclimatization, and training.

California’s Extreme Heat Action Plan, released in April 2022, notes increasingly higher temperatures pose “profoundly disproportionate consequences for the most vulnerable among us.” The report recommends, among other things, a near-term focus on protecting vulnerable populations through codes, standards, and regulations and by increasing awareness to reduce risks posed by extreme heat.

Agency Roles

Existing law authorizes Cal/OSHA to investigate violations of heat illness and prevention standards. This bill would not modify how the existing heat illness and prevention standards are administered and enforced by Cal/OSHA. Current law also authorizes the Division and Workers’ Compensation Appeals Board (WCAB) to administer California’s workers’ compensation program, and during the course of that, investigate whether an employer has violated a Cal/OSHA safety order, pursuant to Labor Code §4551-4553.1. This bill would not impact each agency’s ability to perform their mandated duties.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, “The Department of Industrial Relations (DIR) indicates that it would incur administrative costs in the millions of dollars annually to implement the provisions of the bill (Farmworker Climate Change Heat Injury and Death Fund). DIR notes that, because the bill does not include a sunset date, the $5 million transfer would not be able support the new program created under the bill on an ongoing basis.”

SUPPORT: (Verified 5/16/24)

United Farm Workers (source)

California Food and Farming Network

California Labor Federation

California Rural Legal Assistance Foundation
Californians for Pesticide Reform
Central California Environmental Justice Network
Central Coast Alliance United for A Sustainable Economy
Centro Binacional Para El Desarrollo Indígena Oaxaqueno
County of Santa Clara
CPCA Advocates, Subsidiary of The California Primary Care Association
Pesticide Action Network North America
The United Food and Commercial Workers Western States Council

OPPOSITION: (Verified 5/16/24)

Agricultural Council of California
American Property Casualty Insurance Association
Association of California Egg Farmers
Brea Chamber of Commerce
Building Owners and Managers Association
California Association of Joint Powers Authorities
California Association of Wheat Growers
California Association of Winegrape Growers
California Bean Shippers Association
California Business Properties Association
California Chamber of Commerce
California Coalition on Workers Compensation
California Cotton Ginners and Growers Association
California Farm Bureau
California Fresh Fruit Association
California Grain and Feed Association
California League of Food Producers
California Pear Growers Association
California Seed Association
California State Floral Association
California Strawberry Commission
Carlsbad Chamber of Commerce
City of La Verne
Corona Chamber of Commerce
Cupertino Chamber of Commerce
Danville Area Chamber of Commerce
Family Business Association of California
Family Winemakers of California
Fontana Chamber of Commerce
Garden Grove Chamber of Commerce
Greater Coachella Valley Chamber of Commerce
Greater Conejo Valley Chamber of Commerce
Greater High Desert Chamber of Commerce
Huntington Beach Chamber of Commerce
Imperial Valley Regional Chamber of Commerce
LA Canada Flintridge Chamber of Commerce
Lodi District Chamber of Commerce
Long Beach Area Chamber of Commerce
Modesto Chamber of Commerce
NAIOP California
National Federation of Independent Business
Newport Beach Chamber of Commerce
Nisei Farmers League
Pacific Egg and Poultry Association
Rancho Mirage Chamber of Commerce
Redondo Beach Chamber of Commerce
San Pedro Chamber of Commerce
Santa Maria Valley Chamber of Commerce
Santee Chamber of Commerce
Simi Valley Chamber of Commerce
South Bay Association of Chambers of Commerce
Southwest California Legislative Council
Tri County Chamber Alliance
Tulare Chamber of Commerce
West Ventura County Business Alliance
Western Agricultural Processors Association
Western Growers Association

ARGUMENTS IN SUPPORT: According to the sponsor, United Farm Workers, “There is an increasing number of farm worker heat-related injuries, illnesses, and deaths, as climate change raises temperatures. From 2018 to 2019, the number of suspected and confirmed farm worker heat-related deaths increased approximately 130 percent… Additionally, farm workers face a climate of fear. According to the United States Department of Labor, approximately 77 percent of farm workers were born outside the United States and many do not speak English. Fear of retaliation and being fired for work-related injuries strongly discourage farm workers from reporting heat-related injuries or violations by their employers. SB 1299 will promote agricultural employer consideration of the climate change heat-related needs of farm workers and do whatever is necessary to prevent injury, illness, and death. It would also ensure farm workers and their families receive appropriate and timely benefits authorized by existing law. The bill does not change any existing heat-related regulation or workers’ compensation benefit.”

ARGUMENTS IN OPPOSITION: An opponent coalition letter states, “Preliminary internal audits demonstrate that almost no heat-related claims are filed in the agriculture industry. One large entity that covers the agriculture industry only had 13 heat-related claims over the last five years. That is less than three heat-related claims per year. There is no evidence that the system is failing to function regarding these claims. If proponents of SB 1299 have other data, we are happy to review it. But currently, we are unaware of any data supporting this bill.”

Prepared by: Dawn Clover / L., P.E. & R. / (916) 651-1556

5/17/24 11:56:26

**** END ****

1. Your Area WorkHeat, Climate CHIP, https://www.climatechip.org/your-area-heat-effects ↑

2. Postcard from California: In climate crisis, farmworkers need more protection from heat, The New Lede, July 26, 2023, Postcard from California: In climate crisis, farmworkers need more protection from heat - The New Lede ↑

3. Death in the Fields, Desert Sun, April 4, 2024, https://www.desertsun.com/story/news/2015/11/19/death-fields/74058984/ ↑

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

SB 1299 (Cortese) - Farmworkers: benefits

Bill Summary:

SB 1299 would create a rebuttable presumption that a heat-related injury suffered by a farmworker arose out of and in the course of their employment for the purposes of workers’ compensation when the employer fails to comply with the heat illness prevention regulations, as specified.

Fiscal Impact:

The Department of Industrial Relations (DIR) indicates that it would incur administrative costs in the millions of dollars annually to implement the provisions of the bill (Farmworker Climate Change Heat Injury and Death Fund). DIR notes that, because the bill does not include a sunset date, the $5 million transfer would not be able support the new program created under the bill on an ongoing basis.

Background:

Current law establishes a workers’ compensation system that provides benefits to an employee who suffers from an injury or illness that arises out of and in the course of employment, irrespective of fault. This system requires all employers to secure payment of benefits by either securing the consent of DIR to self-insure or by securing insurance against liability from an insurance company duly authorized by the State.

Current law also creates presumptions to reflect unique circumstances where injuries or illnesses appear to be logically work-related, but it is difficult for the safety officer to prove so. Presumptions are rebuttable, but given that many injuries for which presumptions exist can have a variety of causes, it is difficult to prove they are not work-related. Consequently, Thus, employers rarely attempt to rebut presumptions. These presumptions include, among others, (1) heart disease, (2) hernias, (3) pneumonia, (4) cancer, (5) meningitis, (6) tuberculosis, and (7) bio-chemical illness. The absence of a presumption does not mean an employee does not qualify for workers' compensation benefits, but that an employee must prove an injury is work-related in order to qualify.

California’s farm workers provide permanent or seasonal agricultural labor and are essential to that economic sector. Farmworkers often work during high summertime temperatures and heat waves that exceed 100 degrees Fahrenheit. In recent years, many farmworkers have suffered heat-related illness and death from these extreme temperatures. In response, the State has implemented regulations to require growers establish heat illness prevention plans and emergency response procedures and provide farmworkers with adequate water and shade, access to cool-down rest breaks, and training on heat illness prevention. However, data suggests that many growers are not in compliance with the regulations. As global warming continues to push the state’s average temperatures higher, the incidence of extreme heat and heat-related illness among farmworkers will likely continue to increase.

Last February, the Assembly Committee on Labor and Employment held an informational hearing entitled “Lack of Labor Law Enforcement for California’s Farmworkers,” which included discussion on retaliation faced by farm workers, barriers to reporting legal violations, and lack of enforcement in the field. Farm workers and advocates testified, among other things, that: (1) the language barrier continues to prevent incident reporting to CalOSHA, (2) employers have prior knowledge of inspections of premises, and (3) workers do not report because of fear of retaliation, among other things.

Proposed Law:

This bill would, among other things, do the following:

• Provide that, if an employer, as defined, fails to comply with the heat illness prevention standards set forth in Labor Code Section 6721 and Section 3395 of Title 8 of the California Code of Regulations, any resulting heat-related injury suffered by an employee must be presumed to have arisen out of and in the course of the employee’s employment. Provide that this presumption is disputable and may be controverted by other evidence. Specify that the applicable heat illness prevention standards include, but are not limited to: (1) establishing, implementing, and maintaining an effective heat illness prevention plan and making it available at the worksite in English and the language understood by the majority of employees, (2) providing recognition and response training as required, and (3) providing access to shade and water and a cool-down rest period, as required.
• Define injury to include any heat-related injury, illness, or death that develops or manifests after the employee was working outdoors during or within the pay period in which an employee suffers any heat-related illness, injury, or death.
• Specify that compensation that is awarded pursuant to the bill’s provisions shall include full hospital, surgical, medical treatment, disability, indemnity, and death benefits, as provided.
• Establish the Farmworker Climate Change Heat Injury and Death Fund, with a one-time transfer of $5 million from the Workers’ Compensation Administration Revolving Fund, for the purpose of paying any administrative costs related to the presumption provided in this bill.

Related Legislation:

• AB 2264 (Arambula) would require an employee to obtain and maintain a heat illness prevention training certification from Cal/OSHA within 30 days after the date of hire and require an employer to reimburse the employee for training time. The bill is currently pending in the Assembly Labor and Employment Committee.
• SB 623 (Laird, Chapter 621, Statutes of 2023) extended the workers’ compensation PTSI presumption for specified public safety personnel and required the Commission on Health and Safety and Workers’ Compensation to submit two reports to the Legislature regarding PTSI.
• AB 636 (Kalra, Chapter 451, Statutes of 2023) required an employer to provide an employee a specified notice that includes specified information about any federal or state disaster declaration for the county or counties in which the employee will be employed, and requires an employer of an employee with an H-2A agricultural visa to provide the employee on their first day a notice describing the agricultural employee’s rights and protections under California law.
• AB 1643 (Rivas, Chapter 263, Statutes of 2022) required, on or before July 1, 2023, the Labor and Workforce Development Agency to establish an advisory committee of specified representatives to evaluate and recommend the scope of a study on the effects of heat on California's workers, businesses, and the economy.
• SB 1159 (Hill, Chapter 85, Statutes of 2020) created a rebuttable presumption that illness or death related to COVID-19 is an occupational injury and therefore eligible for workers’ compensation benefits.
• SB 542 (Stern, Chapter 390, Statutes of 2019) created a rebuttable presumption for specified peace officers that a diagnosis of post-traumatic stress injury is occupational and therefore covered by workers’ compensation.
• AB 2346 (Butler, 2012) would have, among other things, made growers and the farm labor contractors they hire jointly liable for failing to supply farm workers with shade and water as required by law. The bill was vetoed by the Governor.
• AB 2676 (Calderon, 2012) would have made it a misdemeanor, punishable by jail time and fines, to fail to provide water and shade, as specified, to employees. The bill was vetoed by the Governor.
• AB 805 (Chu, 2005) would have required Cal/OSHA to adopt heat illness standards. The bill was held under submission on the Suspense File of this Committee.

-- END --

9SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: SB 1299 (Author:Cortese)

Version: March 21, 2024

Hearing Date: April 23, 2024

Fiscal: Yes

Urgency: No

Consultant: ID

SUBJECT

Farmworkers: benefits

DIGEST

This bill creates a rebuttable presumption that a heat-related injury suffered by a farmworker arose out of and in the course of their employment for the purposes of workers’ compensation when the employer fails to comply with the heat illness prevention regulations, as specified.

EXECUTIVE SUMMARY

California’s farmworkers work in dangerous conditions to grow, cultivate, and harvest the food eaten across the nation and globe. In California, these dangerous conditions often include high summertime temperatures and heat waves that exceed 100 degrees Fahrenheit. In recent years, many farmworkers have suffered heat-related illness and death from these extreme temperatures. In response, the state has implemented regulations to require growers establish heat illness prevention plans and emergency response procedures and provide farmworkers with adequate water and shade, access to cool-down rest breaks, and training on heat illness prevention. However, data suggests that many growers are not in compliance with the regulations. As global warming continues to push the state’s average temperatures higher, the incidence of extreme heat and heat-related illness among farmworkers will likely continue to increase.

This bill creates a rebuttable presumption that a farmworker’s heat-related illness arose out of and in the course of their employment when their employer is not in compliance with the state’s heat illness prevention standards, and transfers nongeneral funds from the Workers’ Compensation Administration Revolving Fund for the administration of its provisions. SB 1299 is sponsored by the United Farm Workers and the California Food & Farming Network, and is supported by the California Labor Federation, the California Rural Legal Assistance Foundation, the County of Santa Clara, Central California Environmental Justice Network, the Central Coast Alliance United for a Sustainable Economy, and the Centro Binacional de Desarrollo Indigena Oaxaqueño. It is opposed by the California Chamber of Commerce and a collection of farm and agricultural associations. It passed out of the Senate Labor, Public Employment and Retirement Committee on a vote of 4 to 1.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Requires every employer to carry workers’ compensation insurance through an insurer or by self-insuring with the consent of the Department of Industrial Relations (DIR). (Labor Code §3700.)
2. Establishes the Division of Workers’ Compensation (Division) and Workers’ Compensation Appeals Board (WCAB) within DIR and charges it with monitoring the administration of workers’ compensation claims and providing administrative and judicial services to assist in resolving disputes that arise in connection with claims for workers’ compensation benefits. (Labor Code §3200 et seq.)
3. Charges the WCAB with hearing proceedings related to the recovery of compensation, any right or liability arising out of the compensation, the enforcement against an employer or insurer of any liability, the determination of any question as to the distribution of compensation, the determination of any question as to who are dependents of a deceased employee, for obtaining any order the WCAB is authorized to make, and for the determination of any other matter. Allows the WCAB to appoint one or more workers’ compensation administrative law judges in any proceeding, refer, remove to itself, or transfer to a judge the proceedings on any claim. (Labor Code §§ 5300, 5310.)
4. Provides that the administrative director of the WCAB may adopt, amend, or repeal through public hearings any rules or regulations reasonably necessary to enforce the workers’ compensation provisions. (Labor Code § 5307.3.)
   
5. Creates the Workers’ Compensation Administration Revolving Fund (Fund) for the administration of the workers’ compensation program, the Return-to-Work Program, and the enforcement of the insurance coverage program established by the Labor Commissioner. (Labor Code §62.5.)
   
6. Specifies that upon knowledge of an injury, the employer or their agent shall provide a workers’ compensation claim form to the injured employee within one working day, and within one day of the claim filing, shall authorize medical treatment up to $10,000 for 90 days or until the claim is rejected. If the claim is not rejected within the 90 days, it is presumed compensable. (Labor Code §5402.)
7. Provides that liability for compensation, in lieu of any other liability except as specified, is assigned to an employer, regardless of fault, for any injury an employee suffers arising out of and in the course of the employment, as specified. Provides that liability is assigned for an employee death if the injury proximately causes death, as specified. (Labor Code § 3600.)
8. Defines that a covered injury may either be “specific,” in which it occurred as a result of one incident, or “cumulative,” in which repetitive mentally or physically traumatic activities over a period of time combine to cause any disability or need for medical treatment. (Labor Code § 3208.1.)
9. Requires the employee to submit the claim within 30 days of the injury, but specifies that failure to do so is not a bar to recovery if the employer was not misled or prejudiced by the failure. (Labor Code §§ 5400, 5403.)
10. Charges WCAB with determining whether an employer has violated a Division of Occupational Safety and Health (Cal/OSHA) safety order and making specified findings regarding the manner in which it was violated, the cause of injury or death, and that the safety order was known to, and violated by the employer or their representative. (Labor Code §4551-4553.1.)
    
11. Establishes Cal/OSHA within the Department of Industrial Relations to, among other things, propose, administer, and enforce occupational safety and health standards. (Labor Code §§6300 et seq.)
    
12. Requires Cal/OSHA to investigate an employer or place of employment, with or without notice or hearings, if it learns or has reason to believe that an employment or place of employment is unsafe or injurious to the welfare of an employee. If Cal/OSHA receives a complaint from an employee or an employee’s representative that their employment or place of employment is not safe, it shall, with or without notice or hearing, investigate the complaint of a serious violation within three working days. (Labor Code §6309)
    
13. Establishes heat illness prevention standards, titled the Maria Isabel Vasquez Jimenez heat illness standard, applicable to outdoor places of employment, as specified. Requires that employers:
    1. provide cool, potable water free of charge to employees, as close as practicable to areas where employees work, and sufficient for one quart per employee per hour of work;
    2. provide shade that is either open to the air or has ventilation or cooling, as close as practicable to the areas where employees are working, when temperatures exceed 80 degrees Fahrenheit, except as provided;
    3. make shade available when the temperature is below 80 degrees Fahrenheit, except as provided;
    4. allow and encourage employees to take preventative cool-down rest periods in shade when they feel the need to do so to protect themselves from overheating, and requires the employer monitor a resting employee for and ask about signs of heat illness;
    5. provide appropriate first aid or emergency response, if an employee taking their cool-down rest exhibits signs of heat illness;
    6. implement high heat procedures when temperatures equal or exceed 95 Fahrenheit, to include to the extent practicable:
       1. ensure that effective communication by voice, observation, or electronic means is maintained so that employees can contact a supervisor when necessary;
       2. observe employees for alertness and signs or symptoms of heat illness as specified;
       3. designate one or more employees to each worksite to call for emergency medical services, if necessary;
       4. remind employees throughout the work shift to drink plenty of water;
       5. conduct pre-shift meetings to review the high heat procedures, encourage employees to drink plenty of water, and remind employees of their right to take a cool-down rest when necessary;
       6. for agricultural employees, ensure that employees take a 10 minute cool-down rest every two hours, which can be taken concurrently with any other meal or rest period if they coincide;
    7. implement emergency response procedures, as specified;
    8. observe employees, including new employees for a period of 14 days, during temperatures of 80 degrees Fahrenheit or greater to monitor acclimatization;
    9. provide employee and supervisor training on heat illness detection, prevention, and occurrence, before an employee begins works and a supervisor begins supervising employees; and
    10. establish, implement, and maintain a written heat illness prevention plan, with specified information, either as part of the employer’s written Injury and Illness Program, or maintained in a separate document. (8 CCR §3395, Labor Code §6721.)
14. Requires DWC to submit to the standards board, by December 1, 2025, a rulemaking proposal to consider revising Section 3395, as described above, considering requiring employers to distribute a copy of the Health Illness Prevention Plan to all new employees upon hire and upon training as required, requiring employers to distribute a copy of the plan to all employees at least once annually, and reducing the Air Quality Index (AQI) threshold in Section 5141.1 of Title 8 of the Code of Regulations for requiring respiratory protective equipment. Requires the standards board to review the proposal on or before December 1, 2025, and to consider developing or revising regulations for additional protections related to acclimatization to higher temperatures. (Labor Code § 6721.)
15. Requires the Labor and Workforce Development Agency, on or before July 1, 2023, to establish an advisory committee to study and evaluate the effects of heat on California’s workers, businesses, and the economy. The advisory committee shall submit a report of its findings to the Legislature by January 1, 2026. (Gov. Code §15562.5.)

This bill:

1. Makes the following findings and recommendations:
   
   1. The intent and purpose of this act is to prevent increasing farmworker heat-related injury, illness, and death, as climate change raises temperatures. It is the intent of the Legislature that all agricultural employers consider the climate change heat-related needs of farmworkers and do whatever is necessary to prevent injury, illness, and death, consistent with existing laws and regulations. It is not the intent of this act to change any existing heat-related regulation.
   2. Farmworkers are facing climate change in a climate of fear as heat-related injury, illness, and death increases.
   3. The largest agricultural counties in California are experiencing record-breaking heat waves. In 2022, the City of King City in the County of Monterey broke its hottest temperature ever recorded at 116 degrees Fahrenheit (F). The City of Fresno recorded an all-time high at 114 F. The City of Stockton in the County of San Joaquin shattered its 1988 record of 106 degrees by reaching 112 F. The City of Napa set a record at 114 F. The City of Modesto in the County of Stanislaus topped its prior record at 106 F. In 2023, the City of Paso Robles reached an all-time high of 112 F, breaking the old record of 108 F set in 2010.
   4. According to the United States Department of Labor, approximately 77 percent of farmworkers were born outside the United States and many do not speak English. Fear of retaliation and being fired for work-related injuries strongly discourages farmworkers from reporting heat-related injuries or violations by their employers.
   5. From 2018 to 2019, the number of suspected and confirmed farmworker heat-related deaths increased by approximately 130 percent. In 2022, the Office of the Governor noted that, “Extreme heat ranks amongst the deadliest of all climate change hazards, with structural inequities playing a significant role in the capacity of individuals, workers, and communities to protect and adapt to its effects.”
2. Provides that, if an employer, as defined, fails to comply with the heat illness prevention standards set forth in Labor Code Section 6721 and Section 3395 of Title 8 of the California Code of Regulations, any resulting heat-related injury suffered by an employee must be presumed to have arisen out of and in the course of the employee’s employment. Provides that this presumption is disputable and may be controverted by other evidence. Specifies that the applicable heat illness prevention standards include, but are not limited to:
   1. establishing, implementing, and maintaining an effective heat illness prevention plan and making it available at the worksite in English and the language understood by the majority of employees;
   2. providing recognition and response training as required; and
   3. providing access to shade and water and a cool-down rest period, as required.
3. Defines injury to include any heat-related injury, illness, or death that develops or manifests after the employee was working outdoors during or within the pay period in which an employee suffers any heat-related illness, injury, or death.
4. Specifies that compensation that is awarded pursuant to the bill’s provisions shall include full hospital, surgical, medical treatment, disability, indemnity, and death benefits, as provided.
5. Establishes the Farmworker Climate Change Heat Injury and Death Fund, with a one-time transfer of five million dollars from the nongeneral funds of the Workers’ Compensation Administration Revolving Fund, for the purpose of paying any administrative costs related to the presumption provided in this bill.

COMMENTS

1. Author’s statement

According to the author:

As climate change continues to escalate, breaking heat records across California, our farm workers are increasingly vulnerable. SB 1299 responds to the changing climate by protecting our essential farm workers. Farm workers who suffer injury, illness, or death while working for a noncompliant employer will be treated and compensated expeditiously.

The bill promotes compliance with the existing outdoor heat regulation through a rebuttable presumption for heat-related injury and death. It does not create any additional workers’ compensation benefit level beyond what is otherwise available under existing workers’ compensation law. Nor does it apply to a compliant employer.

1. Farmworkers are dying in the fields from heat
   1. Farm workers & the agricultural industry

Agriculture is one of the largest industries in California, and accounts for over a third of the United States’ vegetables and two-thirds of its fruits and nuts.^[1] This industry relies on about 500,000 to 800,000 farmworkers, who work mostly outdoors to plant, irrigate, nurture, and harvest the hundreds of different crops grown throughout the state.^[2] California’s farmworkers are primarily Latino, and the large majority are not United States citizens.^[3] The median personal income for a farmworker is about $20,000 to $25,000, and 73 percent of farmworker households earn less than 200 percent of the federal poverty line.^[4]

Agriculture is one of the least regulated industrial workplaces in the nation. This is despite the fact that agricultural work primarily involves a significant amount of time outdoors, and is one of the most dangerous industries for workers.^[5] One of the ways in which agricultural work is so dangerous for farmworkers is through exposure to extreme heat. California’s Central Valley and Central Coast, where the majority of the state’s agricultural land is located, regularly experience high summer temperatures above 100 degrees. In 2023, California witnessed record high summer temperatures across the state, as did the planet.^[6] Daytime temperatures in many California inland areas exceeded 100 degrees, with temperatures in Death Valley, the hottest place on Earth, reaching 128 degrees on July 16, 2023.^[7] Such extreme heat incidents and high average temperatures across the state have been increasing, and will only increase more as climate change continues to affect the state.

Thus, farmworkers complete some of the most difficult and dangerous work in the economy, while making some of the lowest incomes of California workers. In addition, since many farmworkers are undocumented or do not have permanent immigration status, they are not eligible for many public benefits, and can be vulnerable to intimidation and harassment due to their immigration status. This is why, according to the author, many farmworkers fear retaliation for reporting an injury to their employer or asserting their rights.

• 1. Heat-related deaths and illness among farmworkers

In the summer of 2005, California experienced one such heat wave. During the heat wave, five farmworkers died while working in the fields.^[8] In response, Governor Schwarzenegger instructed California Occupational Safety and Health Administration (Cal/OSHA) to promulgate emergency heat stress regulations to require all employers to allow outdoor workers to rest in a shaded area if they are suffering from heat illness or feeling the effects of heat, and to require that employers and workers receive training on recognizing, preventing, and treating heat stress.^[9] These regulations were made permanent in June of 2006, becoming the first heat illness prevention standards for outdoor workers in the country at the time.^[10] The permanent rules enacted in 2006 required employers to provide workers access to filtered drinking water, provide shade for employees suffering from heat illness, and train workers and supervisors on the risk factors for heat illness, how to avoid it, and the employer’s procedures relating to the standard and emergency procedures if an employee suffers heat illness.

However, farmworkers have continued to die from heat related illness in the fifteen years since. The United Farm Workers (UFW), the farmworker union founded by César Chávez and Dolores Huerta, recorded two suspected heat-related deaths of farmworkers in 2006, one in 2007, and six in the first half of 2008.^[11] One of the farmworkers who died in 2008 was Maria Isabel Vasquez Jimenez, a 17-year-old, pregnant farmworker originally from Oaxaca, Mexico.^[12] The temperature was above 95 degrees when Maria collapsed while working in the fields; when she arrived at the hospital, she was in a coma with a body temperature of 108 degrees. Reports claimed that the farm labor contractor that had hired her had been fined and cited for failing to comply with California’s heat illness prevention standards two years prior to Maria’s death.^[13] Maria’s death was a preventable tragedy. While some data suggests that heat-related injuries declined 30 percent after California’s heat regulations were implemented in 2005, reports of farmworker heat-related illness and death have continued, including just last year.^[14]

Data from the United States Department of Labor (DOL) and studies from scholars suggest that the issue of heat illness significantly affects many workers every year. DOL data from 2010 to 2020 recorded 267 worker heat deaths nationally, with more than 40 of those deaths taking place in California.^[15] A study from an economist at UCLA estimated that heat causes illness or injury to 20,000 California workers every year.^[16]

• 1. The impact of heat on farmworkers’ health

Heat is so deadly because it can have serious, fast-acting effects on the human body. Exposure to high temperatures can cause illnesses like heat rash, heat cramps, heat syncope (fainting), rhabdomyolsis, heat exhaustion, and heat stroke. Rhabdomyolsis is the rapid breakdown and death of muscle tissue, which can cause muscle cramps and pain, weakness, irregular heart rhythms, seizures, and damage to the kidneys.^[17] Heat exhaustion is the body’s response to an excessive loss of water and salt, and can cause headache, nausea, dizziness, weakness, thirst, irritability heavy sweating, decreased urine output, and elevated body temperature. Heat stroke is the most serious heat-related illness, and occurs when the body can no longer regulate its temperature. Heat stroke can quickly elevate the body’s temperature, and can cause permanent disability and death if the individual does not receive prompt emergency treatment.^[18] Moreover, numerous studies have found that heat stress and high heat can increase mortality and morbidity, and is linked to cardiovascular and respiratory diseases.^[19]

1. California’s agricultural workplace rules on heat

In 2009, the UFW sued the state of California and Cal/OSHA claiming that the state had failed to adequately protect the safety of farmworkers and ensure compliance with its heat regulations. (Bautista v. State of California (2009), No. BC418871.) It brought a second lawsuit in 2012. Both lawsuits were settled in 2015, with Cal/OSHA agreeing to revise its policies and procedures for completing inspections more quickly and taking action against repeat violators, allow the UFW and the UFW Foundation through a memorandum of understanding with the state to report and refer potential violations to Cal/OSHA, conduct confidential internal audits of Cal/OSHA, taking farmworker testimony in the field during heat inspections, and focus on outdoor workplaces during periods of high heat, among other commitments.^[20] As a result of this settlement, Cal/OSHA updated its heat illness prevention regulations.

The current heat illness prevention regulations are contained in California Code of Regulations Section 3395, known as the Maria Isabel Vasquez Jimenez Heat Illness Standard. (Ca. Code of Regs. § 3395.) These regulations require employers to:

• provide cool, filtered water sufficient for at least one quart per hour of work to employees free of charge;
• provide adequate shade when temperatures exceed 80 degrees Fahrenheit;
• allow employees to take preventative cool-down rests;
• provide appropriate first aid and emergency response when a worker is exhibiting signs of heat illness;
• implement effective emergency response procedures;
• train employees and supervisors on heat illness and prevention and risk factors, and the employers’ heat illness prevention procedures; and
• establish, implement, and maintain an effective heat illness prevention plan.

In addition, the regulations require certain additional procedures when temperatures exceed 95 degrees Fahrenheit. When temperatures surpass 95 degrees, the employer must: ensure effective communication is maintained so workers can contact a supervisor if necessary; observe employees for signs of heat illness; and ensure that employees take at least one 10 minute cool-down rest every two hours.

Section 6721 of Title 8 of the California Code of Regulations requires that the Division of Workers’ Compensation (DWC), the division of DIR that administers and monitors the workers’ compensation system, review and propose revisions to Section 3395 by December 1, 2025. (8 Cal. Code of Regs. § 6721.) It requires the DWC to consider requiring employers to distribute a copy of its heat illness prevention plan to all new employees and upon the required training, requiring employers to distribute the heat illness prevention plan at least annually to workers, and to consider changing specified requirements about at what air quality index an employer must provide respiratory protective equipment.

1. Compliance with the heat rules

The author asserts that part of why farmworkers are still suffering from heat-related illness and death is because growers are not following California’s heat illness prevention regulations, and available reporting supports this assertion. One study out of the University of California, Merced, found that 22 percent of farmworkers reported that their employer never monitors for heat illness, that 82 percent say they have never received heat related illness training, and that about half of farmworkers reported that their employers always provide the required 10 minute rest breaks when the temperature is particularly high.^[21] The report also found that 21 percent of farmworkers surveyed said their employers never provided the required 10 minute rest breaks, and a quarter said their employer never or rarely provided the required shade. In 2019, Cal/OSHA conducted more than 4,000 heat-related inspections, and cited employers for noncompliance with the heat illness prevention regulations in 47 percent of the inspections.^[22] Complicating the state’s ability to conduct inspections for enforcement and compliance are the persistent issues with staffing and funding faced by Cal/OSHA.

SB 988 also allocates funds from the Workers’ Compensation Administration Revolving Fund for the use of administering its provisions. The bill would transfer five million dollars from the nongeneral funds of the Revolving Fund to a new Farmworker Climate Change Heat Injury and Death Fund. This one-time transfer of funds would be used to cover the costs of any administrative costs related to SB 988’s provisions.

1. The worker’s compensation system

California law requires that every employer carry workers’ compensation insurance to cover their employees. (Labor Code § 3700.) Workers’ compensation coverage covers work-related injuries that workers suffer while working, and is premised on the concept that workers should be protected from and compensated for injury or illness they suffered from the workplace.^[23] Workers’ compensation is based on a no-fault system, in which an injured employee does not need to prove that the injury or illness was the employer’s or another’s fault in order to receive compensation benefits. To qualify for workers’ compensation, the injury must have “aris[en] out of and in the course of the employment.” (Labor Code § 3600.) A covered injury may either be “specific,” in which it occurred as a result of one incident, or “cumulative,” in which repetitive mentally or physically traumatic activities occurred over a period of time cause any disability or need for medical treatment. (Labor Code § 3208.1.)

When a worker notifies their employer that they suffered a work-related injury, or the employer otherwise becomes aware of the work-related injury, the employer must provide the employee with a claims form within one day for the employee to complete and file with the employer to request workers’ compensation. (Labor Code §§ 5401-5402.) The employee generally must submit the claim to their employer or the claims administrator within 30 days of the injury, and the administrator will then review the claim and either approve or deny it. (Labor Code § 5400.) If the claims administrator determines that the injury was not in the course of the employee’s employment, or does not otherwise qualify, they may deny the claim. They generally have 90 days to deny the claim, after which point the claim is presumed to be compensable. (Labor Code § 5402.).

If the employee’s claim is denied, or they are denied compensation for treatment or a specific treatment for the injury, they may have their case heard by an administrative workers’ compensation judge within the Division of Workers’ Compensation. (Labor Code § 5300.) A decision of the workers’ compensation judge can be appealed to the Workers’ Compensation Appeals Board (WCAB), which may grant reconsideration and consider the case. Additionally, decisions of the WCAB may be appealed to the state’s appellate courts on certain writs.^[24]

1. This bill aims to provide workers assistance when they suffer a heat-related illness and ensure growers are complying with the heat rules

In light of increased heat-related deaths of farmworkers in the fields, SB 1299 aims to promote compliance with California’s heat illness prevention regulations through a rebuttable presumption for heat-related injury or death in the workers’ compensation system. SB 1299 states that, if an employer fails to comply with the state’s heat illness prevention standards, any resulting heat-related injury to an employee shall be presumed to arise out of and in the course of employment. The bill provides that this presumption is rebuttable, but otherwise requires that a worker’s compensation appeals board find in accordance of the presumption. SB 1299 also defines injury for its purposes to include any heat-related injury, illness, or death that develops or manifests after the employee was working outdoors during or within the pay period in which the employee suffers any heat-related illness, injury, or death. Compensation made available under SB 1299 includes full hospital, surgical, medical treatment, disability indemnity, and death benefits.

Through these provisions, SB 1299 requires that a heat-related injury shall be covered by worker’s compensation when the employer was not in compliance with the state’s heat illness prevention regulations, unless the employer can rebut that the injury was work-related. The definition of heat illness in the bill, providing that it may cover illness, injury, or death that manifests or develops within any pay period in which the employee suffers a heat-related illness, would allow that worker’s compensation could cover injury the worker suffers that does not immediately develop. Considering the extensive impact that heat exposure can have on an individual’s body, symptoms and complications from the effects of heat illness could take time to manifest in the worker. SB 988 helps ensure such injuries can still be covered as a work-related heat illness.

1. The rationale for SB 1299’s provisions

The author asserts that SB 1299 will ensure compliance with the state’s heat illness prevention standards and ensure that farmworkers injured by heat illness while working for a noncompliant employer will be able to obtain prompt medical treatment. Certainly, by placing a presumption upon the employer when they are out of compliance with the heat illness prevention standards, SB 1299 will likely encourage more employers to comply with the heat illness prevention standards, as being liable for workers’ compensation claims could increase the employer’s worker compensation insurance premiums. However, such an increase is avoidable, if an employer ensures compliance of the heat illness prevent standards. Doing so may not guarantee that no employees will suffer heat illness, but could likely decrease the incidents of heat illness in the fields. As the data demonstrates, California’s heat illness prevention regulations likely have contributed to some decrease in heat illness since they were first implemented in 2005; however, many growers continue to be out of compliance with their requirements.^[25] Thus, helping ensure compliance could further reduce the amount of heat illness incidents and adverse health outcomes among California’s farmworkers.

Furthermore, SB 1299’s presumption is not entirely novel in workers’ compensation law. There are a variety of other presumptions within the labor code for workers’ compensation that provide a presumption that an injury arose out of the course of employment for the purposes of obtaining workers’ compensation. For example, Labor Code Section 3212.15 provides a presumption that post-traumatic stress disorder (PTSD) arose out of the course of employment for firefighters and police officers. (Labor Code § 3212.15(c).) The law also includes a presumption that hernia, heart trouble, or pneumonia arose out of the course of employment for sheriffs, district attorney’s office staff, and police and fire departments. (Labor Code § 3212.) As another example, Labor Code Section 3212.1 includes a presumption that cancer arose out of the course of employment for firefighters when the cancer develops or manifests during a period in which a firefighter is in service to their department, and the firefighter can demonstrate that they were exposed to a carcinogen while in service to the department. (Labor Code § 3212.1.) Thus, the workers’ compensation system already includes a variety of presumptions meant to allow certain workers the ability to obtain workers’ compensation when their occupation is particularly hazardous, and the injury may be more difficult to attribute to a specific cause. Like the presumption in Section 3212.1, this bill creates a presumption that runs when an employee can show that the employer did not follow safety regulations to protect against the very types of heat-related injuries that the employee is requesting workers’ compensation to treat.

Opposition to SB 1299 raises concerns about how it would be determined under this bill that an employer is not in compliance with the state’s heat illness prevention regulations. This question would likely be addressed by a workers’ compensation administrative judge upon a farmworker’s appeal of a denial of coverage. An administrative workers’ compensation judge would likely be well-suited for such a task, as they are required to evaluate specific factual questions in every case, including in cases regarding presumptions that already exist in the law. Such presumptions already regularly arise in workers’ compensation proceedings. Additionally, evidence that an employer is not in compliance with heat illness prevention regulations may be as simple as evaluating if and how recently the employer was cited by Cal/OSHA for violations. SB 1299 also would not be the first instance in workers’ compensation law in which a workers’ compensation judge is tasked with considering whether an employer complied with workplace safety or other laws. Labor Code Section 4551, for example, requires consideration of whether an injury was caused by the failure of the employer to comply with any provision of law, or any safety order of Cal/OSHA. (Labor Code § 4551.)

Moreover, there is a legitimate public policy rationale for including such a rebuttable presumption as SB 1299’s in workers’ compensation law. Workers’ compensation is primarily concerned with ensuring that an employer is responsible for the injuries a worker suffers on the job, as a result of their employment, and not the employee. From the very foundation of workers’ compensation law early in the Twentieth Century, this premise made sense, as workers must be compensated for their work, and should not be expected to shoulder additional burdens or business expenses in the course of the work that is not part of their employment and compensation. Workers are paid for their labor, and should not be expected to suffer additional costs for that compensation; requiring them to do so would essentially diminish the compensation they receive and affect their life and health outside of the job. When California’s workers’ compensation system was created, it came about due to increased awareness and outrage at the poor and dangerous working conditions of early industrial America, and at the financially devastating impact a work-related injury could have on a worker or their family.^[26] Farmworkers also do work that is incredibly dangerous, and are at risk of financial distress from a significant medical expense given most farmworkers’ average wages.

Yet workers’ compensation law and workplace safety are also intrinsically tied: employers are required to maintain a safe and healthy workplace, and so it follows that a part of that obligation is that the employer ensure that injuries a worker suffers in the workplace are promptly treated at the employer’s expense. Part of ensuring a safe and healthy workplace is ensuring that workers receive prompt medical care if they do suffer an injury. Thus, it is rational public policy to place a heavier burden on an employer to prove a worker’s injury is not work-related when that employer is not adequately ensuring the safety of the workplace. The state has an interest in ensuring that employers are complying with its heat illness prevention regulations, and doing so would ensure fewer farmworkers suffer heat-related illness. SB 1299 could help accomplish this goal, and would help ensure farmworkers who do suffer heat-related injuries can be adequately compensated for their injuries.

1. Arguments in support

According to the United Farm Workers, the sponsor of SB 1299:

[SB 1299] would establish a Farm Worker Climate Change Heat Injury and Death administrative fund and promote employer compliance with existing state outdoor heat illness prevention standards by creating a rebuttable presumption – if a farm worker heat-related injury or death occurs and their agricultural employer is found to be noncompliant with the state heat illness prevention standards, the injury or death is presumed to have occurred in the course of employment.

There is an increasing number of farm worker heat-related injuries, illnesses, and deaths, as climate change raises temperatures. From 2018 to 2019, the number of suspected and confirmed farmworker heat-related deaths increased approximately 130 percent. And, the largest agricultural counties in California are experiencing record-breaking heat waves. In 2022, the City of King City in the County of Monterey broke its hottest temperature ever recorded at 116 degrees. The City of Fresno recorded an all-time high at 114 degrees. The City of Stockton in the County of San Joaquin shattered its 1988 record of 106 degrees by reaching 112 degrees. The City of Napa set a record at 114 degrees. The City of Modesto in the County of Stanislaus topped its prior record at 106 degrees. In 2023, the City of Paso Robles reached an all-time high of 112 degrees, breaking the old record of 108 degrees set in 2010.

Additionally, farm workers face a climate of fear. According to the United States Department of Labor, approximately 77 percent of farm workers were born outside the United States and many do not speak English. Fear of retaliation and being fired for work-related injuries strongly discourages farm workers from reporting heat-related injuries or violations by their employers.

SB 1299 will promote agricultural employer consideration of the climate change heat-related needs of farm workers and do whatever is necessary to prevent injury, illness, and death. It would also ensure farm workers and their families receive appropriate and timely benefits authorized by existing law. The bill does not change any existing heat-related regulation or workers’ compensation benefit.

1. Arguments in opposition

According to the California Chamber of Commerce, which is opposed to SB 1299:

SB 1299 would create a presumption that a heat-related illness or injury is occupational if the employer fails to comply with any of the heat illness prevention standards in Sections 6721 or 3395 of Title 8 of the California Code of Regulations. We are unaware of any data demonstrating that there is a need for a presumption for agricultural workers for heat-related illnesses and injuries.

Injuries occurring within the course and scope of employment are automatically covered by workers’ compensation, regardless of fault. If there is ever a dispute in evidence, the law requires the evidence to be viewed in favor of the worker. As this Legislature and Administration have recognized many times, presumptions should be established sparingly. As this committee has said:

[T]he creation of presumptive injuries is an exceptional deviation that uncomfortably exists within the space of the normal operation of the California workers’ compensation system. Rather than permit the existing system to operate in its normal course, the Legislature places its thumb on the scale: for these peace officers, for these injuries, employer must accept liability (barring unusual circumstances). As this essentially creates a set-aside microsystem within the larger workers’ compensation system of automatic indemnity payments, the Legislature has historically decided to keep the number of presumed injuries and individuals who could qualify for such presumptions limited. If these exceptions were not limited, they would essentially consume and undermine the entire system, as it would create a situation where a small class of workers has more and more access to the workers’ compensation system in a manner that other workers (some similarly situated) do not enjoy.

This administration correctly noted in prior veto messages that presumptions should only be created where there is clear and convincing evidence of the need for one:

A presumption is not required for an occupational disease to be compensable. Such presumptions should be provided sparingly and should be based on the unique hazards or proven difficulty of establishing a direct relationship between a disease or injury and the employee's work. Although well-intentioned, the need for the presumption envisioned by this bill is not supported by clear and compelling evidence.

Preliminary internal audits demonstrate that almost no heat-related claims are filed in the agriculture industry. One large entity that covers the agriculture industry only had 13 heat-related claims over the last five years. That is less than three heat-related claims per year. There is no evidence that the system is failing to function regarding these claims. If proponents of SB 1299 have other data, we are happy to review it. But currently, we are unaware of any data supporting this bill.

The reason presumptions are so rarely enacted is because a presumption essentially forces an employer to cover an injury regardless of whether it does in fact fall under the purview of workers’ compensation. For example, here the presumption would also apply even if the alleged violation was tangential to any potential injury. If just one supervisor did not receive the required training, the presumption would apply to any heat-related illness or injury for any employee, even one that has no interaction with that supervisor. And pursuant to proposed section 3212.81(b), it would apply to any illness or injury that develops during the pay period, which could be up to 31 days under Labor Code section 205.

Further, the bill does not include mechanics as far as how establishing applicability of the presumption would work. The bill does not specify how it would be determined that an employer did in fact violate the applicable provisions of heat illness prevention standard. If the bill contemplates that determination being made by the Workers Compensation Appeals Board (WCAB), we have strong concerns with imparting that responsibility on an entity that specializes in workers’ compensation claims, not workplace safety.

While we appreciate the intent behind the proposed Farmworker Climate Change Heat Injury and Death Fund is to assist workers who suffer occupational injuries, it is unclear from the proposed language what the fund would cover. The language provides that it will fund “paying any administrative costs related to Section 3212.81”. It is unclear if that is the workers’ costs, which should not be necessary because those claims would be accepted and paid, or if it is the state’s administrative costs. Further, the fund is coming from the Workers’ Compensation Administration Revolving Fund. The Workers’ Compensation Administration Revolving Fund is funded through workers’ compensation assessments paid by all employers, including public entities. Generally, other industry-specific funds are funded by that industry alone.

SUPPORT

United Farm Workers (sponsor)
California Food & Farming Network (sponsor)

California Labor Federation

California Rural Legal Assistance Foundation

Central California Environmental Justice Network

Central Coast Alliance United for a Sustainable Economy

Centro Binacional de Desarrollo Indigena Oaxaqueño

County of Santa Clara

OPPOSITION

Agricultural Council of California

American Property Casualty Insurance Association

Association of California Egg Farmers

Brea Chamber of Commerce

Building Owners and Managers Association

California Association of Joint Powers Authority

California Association of Wheat Growers

California Association of Winegrape Growers

California Bean Shippers Association

California Business Properties Association

California Chamber of Commerce

California Coalition on Workers’ Compensation

California Cotton Ginners and Growers Association

California Farm Bureau

California Fresh Fruit Association

California Grain and Feed Association

California League of Food Producers

California Pear Growers Association

California Seed Association

California State Floral Association

California Strawberry Commission

Carlsbad Chamber of Commerce

Corona Chamber of Commerce

Cupertino Chamber of Commerce

Danville Area Chamber of Commerce

Family Business Association of California

Family Winemakers of California

Fontana Chamber of Commerce

Garden Grove Chamber of Commerce

Greater Coachella Valley Chamber of Commerce

Greater Conejo Valley Chamber of Commerce

Greater High Desert Chamber of Commerce

Huntington Beach Chamber of Commerce

Imperial Valley Regional Chamber of Commerce

La Cañada Flintridge Chamber of Commerce

Lodi District Chamber of Commerce

Long Beach Area Chamber of Commerce

Modesto Chamber of Commerce

NAIOP California

National Federation of Independent Business

Nisei Farmers League

Newport Beach Chamber of Commerce

Pacific Egg & Poultry Association

Rancho Mirage Chamber of Commerce

Redondo Beach Chamber of Commerce

San Pedro Chamber of Commerce

Santa Maria Valley Chamber of Commerce

Santee Chamber of Commerce

Simi Valley Chamber of Commerce

South Bay Association of Chambers of Commerce

Southwest California Legislative Council

Tri-County Chamber Alliance

Tulare Chamber of Commerce

West Ventura County Business Alliance

Western Agricultural Processors Association

RELATED LEGISLATION

Pending Legislation: AB 2264 (Arambula, 2024) requires an employee to obtain and maintain a heat illness prevention training certification from Cal/OSHA within 30 days after the date of hire and require an employer to reimburse the employee for training time. AB 2264 is currently in the Assembly Labor and Employment Committee.

Prior Legislation:

SB 623 (Laird, Ch. 621, Stats. 2023) extended the workers’ compensation PTSI presumption for specified public safety personnel and required the Commission on Health and Safety and Workers’ Compensation to submit two reports to the Legislature regarding PTSI.

AB 636 (Kalra, Ch. 451, Stats. 2023) required an employer to provide an employee a specified notice that includes specified information about any federal or state disaster declaration for the county or counties in which the employee will be employed, and requires an employer of an employee with an H-2A agricultural visa to provide the employee on their first day a notice describing the agricultural employee’s rights and protections under California law.

AB 1643 (Rivas, Ch. 263, Stats. 2022) required, on or before July 1, 2023, the Labor and Workforce Development Agency to establish an advisory committee of specified representatives to evaluate and recommend the scope of a study on the effects of heat on California's workers, businesses, and the economy.

SB 1159 (Hill, Ch. 85, Stats. 2020) created a rebuttable presumption that illness or death related to COVID-19 is an occupational injury and therefore eligible for workers’ compensation benefits.

SB 542 (Stern, Ch. 390, Stats. 2019) created a rebuttable presumption for specified peace officers that a diagnosis of post-traumatic stress injury is occupational and therefore covered by workers’ compensation.

AB 2346 (Butler, 2012) would have, among other things, made growers and the farm labor contractors they hire jointly liable for failing to supply farm workers with shade and water as required by law. AB 2346 was vetoed by Governor Brown, on the basis that it would burden courts with private lawsuits.

AB 2676 (Calderon, 2012) would have made it a misdemeanor, punishable by jail time and fines, to fail to provide water and shade, as specified, to employees. AB 2676 was vetoed by Governor Brown on the basis that creating a new criminal ground was not the appropriate solution to enforce heat illness prevention standards.

AB 805 (Chu, 2005) would have required Cal/OSHA to adopt heat illness standards. AB 805 died in the Senate Appropriations Committee.

PRIOR VOTES:

Senate Labor, Public Employment, and Retirement Committee (Ayes 4, Noes 1)

**************

1. California Department of Food & Agriculture, California Agricultural Statistics Review 2019-2020 (2020). ↑

2. Philip L. Martin, How many workers are employed in California agriculture?, California Agriculture Vol. 71(1) (Aug. 23, 2016), p. 30-34, available at https://calag.ucanr.edu/Archive/?article=ca.2016a0011. ↑

3. United States Department of Labor, California Findings from the National Agricultural Workers Survey (NAWS) 2015-2019: A demographic and Employment Profile of California Farmworkers, Research Report No. 15 (Jan. 2022), available at https://www.dol.gov/agencies/eta/national-agricultural-workers-survey/research. ↑

4. Id., California Research Bureau, Farmworkers in California: A Brief Introduction, S-13-017 (Oct. 2013). ↑

5. Bureau of Labor Statistics, National Census of Fatal Occupational Injuries in 2022, United States Department of Labor, USDL-23-2615 (Dec. 19, 2023) (finding that the fatal work injury rate in 2022 for all industries was 3.7 fatalities per 100,000 full-time equivalent workers, while it was 23.5 fatalities per 100,000 for farming, fishing, and forestry occupations, the highest rate of any industry.) ↑

6. Seth Borenstein, California’s Death Valley sizzles as brutal heat wave continues, Associated Press (Jul. 16, 2023), available at https://apnews.com/article/death-valley-heat-wave-california-hottest-record-c1b2d83dc384e46f133d460893787c52; California Office of Emergency Services, Extreme Heat Breaking Records at Home and Beyond (Aug. 2, 2023), available at https://news.caloes.ca.gov/extreme-heat-breaking-records-at-home-and-beyond/. ↑

7. Borenstein, supra note 6. ↑

8. United Farm Workers, Services for Constantino Cruz, 5^th valley farm worker to die from heat in July (Aug. 2, 2005), available at https://ufw.org/Services-for-Constantino-Cruz-5th-valley-farm-worker-to-die-from-heat-in-July/. ↑

9. Josh Cable, California: Worker Deaths Prompt Emergency Heat Stress Rule Proposal, EHS Today (Aug. 4, 2005), available at https://www.ehstoday.com/archive/article/21907188/california-worker-deaths-prompt-emergency-heat-stress-rule-proposal. ↑

10. Katherine Torres, California Adopts Standard to Stave Off Heat-Related Deaths, EHS Today (Jun. 21, 2006), available at https://www.ehstoday.com/safety/article/21904231/california-adopts-standard-to-stave-off-heat-related-deaths. ↑

11. United Farm Workers, Suspected Heat Related Farm Worker Deaths: July 2004- July 2008 (Aug. 8, 2008), available at https://ufw.org/suspected-heat-related-farm-worker-deaths-july-2004-july-2008/. ↑

12. Sasha Khokha, Teen Farmworker’s Heat Death Sparks Outcry, National Public Radio (Jun. 6, 2008), available at https://www.npr.org/2008/06/06/91240378/teen-farmworkers-heat-death-sparks-outcry. ↑

13. Id. ↑

14. Jisung Park et al., Temperature, Workplace Safety, and Labor Market Inequality, University of California, Los Angeles (Jun. 28, 2021), available at https://ucla.app.box.com/s/14m6pj1algt7rwb8ihq4lyqjhm2ueejj; Esther Quintanilla, Farmwoker dies in Fresno county after working in extreme heat. ‘He should not have died.’, KVPR (Aug. 18, 2023), available at https://www.kvpr.org/local-news/2023-08-18/farmworker-dies-in-fresno-county-after-working-in-extreme-heat-he-should-not-have-died. ↑

15. Brian Edwards & Jacob Margolis, Why California Workers Are Still Dying from Heat – Despite Protections, KQED (Sept. 8, 2021), available at https://www.kqed.org/news/11886402/why-california-workers-are-still-dying-from-heat-despite-protections. ↑

16. Park, supra note 14. ↑

17. National Institute for Occupational Safety and Health, Heat Stress – Heat Related Illness, United States Centers for Disease Control and Prevention (May 13, 2022), available at https://www.cdc.gov/niosh/topics/heatstress/heatrelillness.html. ↑

18. Id. ↑

19. See Kristie L. Ebi et al, Hot Weather and heat extremes: health risks, The Lancet, Vol. 398, Is. 10301 (Aug. 21, 2021), p. 698, available at https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(21)01208-3/fulltext; Sadeer Al-Kindi et al, Cardiovascular disease burden attributable to non-optimal temperature: analysis of the 1990-2019 global burden of disease, European Journal of Preventive Cardiology, Vol. 30, No. 15 (Oct. 2023), p. 1623, available at https://academic.oup.com/eurjpc/article/30/15/1623/7146482?login=true; United States Environmental Protection Agency, Climate Change Indicators: Heat-Related Deaths (Apr. 2021), available at https://www.epa.gov/climate-indicators/climate-change-indicators-heat-related-deaths#ref20. ↑

20. United Farm Workers, Better Enforcement of farm-worker heat rules as UFW and Brown Administration settle lawsuit (Jun. 11, 2015), available at https://ufw.org/Better-enforcement-of-farm-worker-heat-rules-as-UFW-and-Brown-administration-settle-lawsuit/; see also United Farm Workers, CA Heat Regs (Jan. 27, 2023), available at https://ufw.org/heat/. ↑

21. Paul Brown & Ana Padilla, Farmworker Health in California: Health in a time of contagion, drought, and climate change, University of California, Merced (Aug. 2022), available at https://clc.ucmerced.edu/publications. ↑

22. Edwards & Margolis, supra note 15. ↑

23. California Department of Insurance, The Evolution of Workers Compensation (Oct. 4, 2023), available at https://www.insurance.ca.gov/01-consumers/105-type/95-guides/09-comm/WorkersCompensation.cfm. ↑

24. Workers’ Compensation Appeals Board, Organization and Functions, Department of Industrial Relations (accessed Apr. 12, 2024), available at https://www.dir.ca.gov/wcab/about_wcabf.htm. ↑

25. Edwards & Margolis, supra note 15. ↑

26. California Department of Insurance, supra note 23. ↑

SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Lola Smallwood-Cuevas, Chair

2023 - 2024 Regular

Bill No: SB 1299 Hearing Date: April 10, 2024

SUBJECT: Farmworkers: benefits

KEY ISSUE

This bill creates a workers’ compensation presumption, disputable by an agricultural employer, that an outdoor agricultural worker’s injury is heat-related if the employer fails to comply with heat illness standards.

ANALYSIS

Existing law:

1. Defines an “employer” as:
   1. The State and every State agency;
   2. Each county, city, district, and all public and quasi-public corporations and public agencies therein;
   3. Every person including any public service corporation, which has any natural person in service; or
   4. The legal representative of any deceased employer. (Labor Code §3300)
      
2. Establishes the Division of Workers’ Compensation (Division) and Workers’ Compensation Appeals Board (WCAB) within the Department of Industrial Relations and charges it with monitoring the administration of workers’ compensation claims and providing administrative and judicial services to assist in resolving disputes that arise in connection with claims for workers’ compensation benefits. (Labor Code §§3200)
   
3. Creates the Workers’ Compensation Administration Revolving Fund (Fund) for the administration of the workers’ compensation program, the Return-to-Work Program, and the enforcement of the insurance coverage program established by the Labor Commissioner. (Labor Code §62.5)
   
4. Requires every employer to carry workers’ compensation insurance through an insurer or by self-insuring with the consent of the Department of Industrial Relations. (Labor Code §3700)
   
5. Charges WCAB with determining whether an employer has violated a Division of Occupational Safety and Health (CalOSHA) safety order and making specified findings regarding the manner in which it was violated, the cause of injury or death, and that the safety order was known to, and violated by the employer or their representative. (Labor Code §4551-4553.1)
   
6. Specifies that upon knowledge of an injury, the employer or their agent shall provide a workers’ compensation claim to the injured employee and within one working day of the claim filing, shall authorize medical treatment up to $10,000 for 90 days or until the claim is rejected. (Labor Code §5402)
   
7. Creates various disputable presumptions for specified public safety employees. (Labor Code §§3212, 3212.1, 3212.5, 3212.6, 3212.7, 3212.85, 3212.9, 3212.10, 3212.12, 3213, 3213.3)
   
8. Establishes CalOSHA within the Department of Industrial Relations to, among other things, propose, administer, and enforce occupational safety and health standards. (Labor Code §§6300 et seq.)
   
9. Requires CalOSHA to investigate the employment or place of employment, with or without notice or hearings if it learns or has reason to believe that an employment or place of employment is unsafe or injurious to the welfare of an employee. If CalOSHA receives a complaint from an employee or an employee’s representative that their employment or place of employment is not safe, it shall, with or without notice or hearing, summarily investigate the complaint of serious violation within three working days. (Labor Code §6309)
   
10. Establishes heat illness prevention standards applicable to agriculture and the transportation or delivery of agricultural products, as specified. Standards include:
    1. Provision of cool potable water as close as practicable to areas where employees work;
    2. Access to shade, with ventilation of cooling when temperatures exceed 80 degrees Fahrenheit (F);
    3. Implementation of high heat procedures when temperatures equal or exceed 95 F;
    4. Assurance of a ten minute per two hour cool down break when temperatures exceed 95 F, which may be taken with a meal break or rest period;
    5. Implementation of emergency response procedures and effective communication by voice, observation, or electronic means is maintained;
    6. Observation of employees during temperatures of 80 F and above to monitor acclimatization;
    7. Employee and supervisor training on heat illness detection, prevention, and occurrence; and
    8. Establishment, implementation, and maintenance of a heat illness prevention plan, either as part of the employer’s written Injury and Illness Program or maintained in a separate document. (8 CCR §3395, Labor Code §6721)
       
11. Requires the Labor and Workforce Development Agency, on or before July 1, 2023, to establish an advisory committee to study and evaluate the effects of heat on California’s workers, businesses, and the economy. The advisory committee shall submit a report of its findings to the Legislature by January 1, 2026. (Government Code §15562.5)
    
12. Requires, as part of the California Youth Football Act, each youth tackle football administrator, coach, and referee to annually complete training in the basic understanding of the signs, symptoms, and appropriate responses to heat-related illness. (Health and Safety Code §124241)
    
13. Requires the California High School Coaching Education and Training Program to include training on the signs and symptoms of, and appropriate responses to, heat illness. (Education Code §35179.1)
    

This bill:

1. Provides that an agricultural employee’s heat-related injury, illness, or death shall be presumed to arise out of and in the course of employment should the agricultural employer fail to comply with heat illness prevention standards set forth in Labor Code §6721 and §3395 of Title 8 of the California Code of Regulations.
   
2. Defines “injury” to include any heat-related injury, illness, or death that develops or manifests after the employee was working outdoors during or within the pay period in which an employee suffers any heat-related illness, injury, or death.
   
3. Establishes, for administrative costs, the Farmworker Climate Change Heat Injury and Death Fund (Fund) consisting of a one-time transfer of five million dollars derived from the Fund for administrative costs relative to the provisions of this bill.
   
4. Makes the following findings and recommendations:
   
   1. The intent and purpose of this act is to prevent increasing farmworker heat-related injury, illness, and death, as climate change raises temperatures. It is the intent of the Legislature that all agricultural employers consider the climate change heat-related needs of farmworkers and do whatever is necessary to prevent injury, illness, and death, consistent with existing laws and regulations. It is not the intent of this act to change any existing heat-related regulation.
   2. Farmworkers are facing climate change in a climate of fear as heat-related injury, illness, and death increases.
   3. The largest agricultural counties in California are experiencing record-breaking heat waves. In 2022, the City of King City in the County of Monterey broke its hottest temperature ever recorded at 116 degrees Fahrenheit (F). The City of Fresno recorded an all-time high at 114 F. The City of Stockton in the County of San Joaquin shattered its 1988 record of 106 degrees by reaching 112 F. The City of Napa set a record at 114 F. The City of Modesto in the County of Stanislaus topped its prior record at 106 F. In 2023, the City of Paso Robles reached an all-time high of 112 F, breaking the old record of 108 F set in 2010.
   4. According to the United States Department of Labor, approximately 77 percent of farmworkers were born outside the United States and many do not speak English. Fear of retaliation and being fired for work-related injuries strongly discourages farmworkers from reporting heat-related injuries or violations by their employers.
   5. From 2018 to 2019, the number of suspected and confirmed farmworker heat-related deaths increased by approximately 130 percent. In 2022, the Office of the Governor noted that “Extreme heat ranks amongst the deadliest of all climate change hazards, with structural inequities playing a significant role in the capacity of individuals, workers, and communities to protect and adapt to its effects.”

COMMENTS

1. Background

Workers’ Compensation

Article XIV of the California Constitution rests the duty upon the Legislature to create and enforce workers’ compensation and to create and enforce a liability on the part of any or all persons to compensate workers for injury or disability, and their dependents, for the death of the worker during the course of their employment.

When a non-public sector employee acquires a work-related injury or illness (injury), the employer or their agent must offer medical treatment as soon as they have knowledge of the injury and provide a claim form to the employee for them to fill out and file. Upon filing, the employer or their workers’ compensation insurer has 90 days to deny the claim, at which time the injury is presumed to be compensable. Additionally, within one working day of the employee filing the claim, the employer must authorize up to $10,000 in medical treatment until the claim is accepted or rejected.

Climate Change

With climate change, increasing exposure to elevated summertime heat is expected, with the number of unsafe outdoor work days estimated to increase each year.^[1] While this does not prohibit work on hot days, it would necessitate an awareness by employers in order to modify work schedules accordingly. The state has already seen a steady increase in average summer temperatures since 1985. The projected increases in temperature will severely impact the inland valleys – some of the major agricultural areas where the vast majority of California’s farm workers are employed.^[2]

Seasonal and Migratory Employment
Farm workers provide permanent or seasonal agricultural labor and are essential to the industry and public. The very nature of farm work is highly unstable due to the seasonality of agriculture and the migratory need to work where there is a demand for labor. Ninety-two percent of farm workers in California identify as Latino, and only 14 percent were born in the United States. The number of farm workers in California is hard to establish because of many factors including immigration status, migration between growing areas, seasonal or part time work and language barriers.^[3] Farm worker households tend to have high rates of poverty and live disproportionately in the poorest housing conditions.^[4]

On February 7, 2024, the Assembly Committee on Labor and Employment held an informational hearing entitled “Lack of Labor Law Enforcement for California’s Farmworkers,” which included discussion on retaliation faced by farm workers, barriers to reporting legal violations, and lack of enforcement in the field. Farm workers and advocates testified, among other things, that:

• The language barrier continues to prevent incident reporting to CalOSHA.
• Employers are tipped off prior to inspection of premises.
• Workers do not report because of fear of retaliation, among other things.
  

Heat Fatalities and Reporting

Between 2002 and 2004, two heat-related fatalities were reported in the agricultural industry. In 2005, heat illness prevention and response legislation was introduced. Assembly Bill 805 (Chu, 2005) would have required CalOSHA to adopt a standard for heat illness prevention and response for the agricultural industry by December 1, 2006, and for employees in other at-risk outdoor occupations by December 1, 2007.

In July 2005, four farm workers - Salud Zamudio Rodriguez, Ramon Hernandez, Augstine Gudino, and Constantino Cruz Hernandez - died of heat illness. At the time, the National Weather Service recorded that month the third and fourth hottest on record with consistent highs at and above 100 F for the regions where the deaths occurred. In August 2005, CalOSHA issued an emergency regulation modeled after AB 805, which applies to outdoor places of employment such as agriculture, construction, landscaping, oil and gas extraction, and the transportation and delivery of agricultural products, construction materials, and other heavy items.

In May 2008, 17 year old Maria Isabel Vasquez Jimenez was pregnant while working in a San Joaquin County vineyard and collapsed. She was admitted to the hospital already in a coma with a body temperature of 108 F. She and her fetus later succumbed to heat illness. A subsequent investigation concluded temperatures had peaked at 95 F and adequate water, shade, and training standards were not provided. Two supervisors found guilty of violating standards were sentenced to community service. In 2012, two bills were introduced to address continued heat illness injury and fatalities among farm workers, which were vetoed by Governor Brown.

In 2014, 13 farm workers died after working in the fields.^[5] Between 2008 and 2014, CalOSHA investigated 55 farm worker deaths.^[6] Since then, CalOSHA has acknowledged heat illness incidents are underreported. The United States Bureau of Labor Statistics estimates were approximately seven times higher than what has been reported by the state. Of the 209 farm worker illnesses investigated during this timeframe, CalOSHA confirmed 97 as heat related.

On May 1, 2015, revised heat illness prevention standards took effect. The revised standard established additional requirements for the provision of and access to water and shade and created additional obligations during periods that high-heat procedures are required. The revised standard also included new language regarding emergency response procedures, acclimatization, and training.

In 2019, there was a marked increase in suspected heat fatalities compared to 2018. Forty three percent of the fatalities resulted in citations for the employer failing to follow heat illness prevention guidelines. The official fatality rate does not reflect how the heat affects farm workers because California does not record the number of serious injuries involving overnight hospital stays due to heat illness.^[7]

Farm workers reported, and continue to report, that they are intimidated into not exercising their rights. The University of California, Merced’s Community and Labor Center analysis of “Farmworker Health Survey 2021-2022” reported 15 percent of 1200 surveyed farm workers did not receive their entitled breaks, 43 percent were never provided a Heat Illness Prevention Plan, 22 percent were not monitored when the temperature exceeded 95 F, 20 percent were not monitored on hot days, and 15 percent were not provided enough shade during breaks. One in three farm workers would be unwilling to report employer non-compliance and nearly two in three (64%) are unwilling to report due to fear of retaliation.

California’s Extreme Heat Action Plan, released in April 2022, notes increasingly higher temperatures pose “profoundly disproportionate consequences for the most vulnerable among us.” The report recommends, among other things, a near-term focus on protecting vulnerable populations through codes, standards, and regulations and by increasing awareness to reduce risks posed by extreme heat. Further, according to an August 2023 California Department of Public Health report entitled “Excess Mortality During the September 2022 Heat Wave in California,” heat waves are becoming longer, more frequent, and more intense, further jeopardizing certain populations, such as outdoor workers.

Agency Roles

Existing law authorizes CalOSHA to investigate violations of heat illness and prevention standards. This bill would not modify how the existing heat illness and prevention standards are administered and enforced by CalOSHA. Current law also authorizes the Division and Workers’ Compensation Appeals Board (WCAB) to administer California’s workers’ compensation program, and during the course of that, investigate whether an employer has violated a CalOSHA safety order, pursuant to Labor Code §4551-4553.1. This bill would not impact each agency’s ability to perform their mandated duties.

As of March 2024, the CalOSHA Bureau of Investigation’s vacancy rate was 85 percent, with one investigator remaining for the entire state.^[8] According to recent state budget data, the overall vacancy rate for CalOSHA is approximately 35 percent.

2. Need for this bill

The author states “The bill would establish a Farm Worker Climate Change Heat Injury and Death administrative fund and promote agricultural employer compliance with the existing state outdoor heat illness prevention regulation by creating a rebuttable presumption – if a farm worker heat-related injury or death occurs and their agricultural employer is found to be noncompliant with the existing state outdoor heat illness prevention regulation, the injury or death is presumed to have occurred in the course of employment.”

3. Double Referral

This bill has been double referred to the Senate Committee on Judiciary.

4. Proponent Arguments

According to the sponsor, United Farm Workers, “There is an increasing number of farm worker heat-related injuries, illnesses, and deaths, as climate change raises temperatures. From 2018 to 2019, the number of suspected and confirmed farm worker heat-related deaths increased approximately 130 percent… Additionally, farm workers face a climate of fear. According to the United States Department of Labor, approximately 77 percent of farm workers were born outside the United States and many do not speak English. Fear of retaliation and being fired for work-related injuries strongly discourage farm workers from reporting heat-related injuries or violations by their employers. SB 1299 will promote agricultural employer consideration of the climate change heat-related needs of farm workers and do whatever is necessary to prevent injury, illness, and death. It would also ensure farm workers and their families receive appropriate and timely benefits authorized by existing law. The bill does not change any existing heat-related regulation or workers’ compensation benefit.”

California Rural Legal Assistance Foundation states “Excessive heat warnings are becoming more and more common with heat waves lasting longer. In July of 2023, 241 high maximum temperature records were broken and an additional 117 records were tied across California. Farmworker face especially high risk of heat related injury and illness because they perform strenuous work at fast pace often in direct sun. Agricultural workers had the highest rate of heat illness cases in a study of California work heat related illness claims between 2000-2017. The outdoor heat illness prevention regulation mandates ready availability of ample supply of cool drinking water and work practices that encourage frequent water consumption, enough shade to accommodate all workers taking breaks at the same time, training before work in the heat and a written heat illness prevention and response plan available at the worksite. Unfortunately, we hear often from farmworkers that these requirements are not being met. In a recent survey of farmworkers conducted by UC Merced 43% of workers reported never seeing a work heat injury prevention plan and 31% had not received heat illness prevention training within the past year. Due to severe understaffing, Cal-OSHA doesn’t have the capacity to conduct enough inspections or respond to complaints in a timely manner.”

5. Opponent Arguments

According to Nisei Farmers League, “Should SB 1299 become law, the unintended consequence would be that it would create a two-tier system. [CalOSHAs] investigatory dictate set out in Labor Code §3395 would remain in place where the issue is not spurned by industrial injury or death. But, where an industrial injury or death occurs and the question is whether the employer has in place an adequate heat illness prevention plan, the WCAB would be forced to conduct its own proceedings. Such a two-track process would be ripe for confusion and duplication…

SB 1299 would act to create a new presumption class that applies solely to farm worker employees… The unintended consequence of SB 1299 is to use [WCAB] to enforce implementation and maintenance of heat illness programs that has, to this point, been the exclusive responsibility of [CalOSHA]. But, under the plan proposed by SB 1299, the WCAB would only have the right where there is a claim for industrial injury or death and an allegation that no heat illness prevention plan was in place. Otherwise, [CalOSHA] would remain responsible for enforcement of heat illness prevention plan implementation…the California Workers’ Compensation program already addresses and provides for an injured worker’s immediate medical care – even while the employer or carrier is investigating the claims and has not yet accepted or denied the claims.”

An opponent coalition letter states “Preliminary internal audits demonstrate that almost no heat-related claims are filed in the agriculture industry. One large entity that covers the agriculture industry only had 13 heat-related claims over the last five years. That is less than three heat-related claims per year. There is no evidence that the system is failing to function regarding these claims. If proponents of SB 1299 have other data, we are happy to review it. But currently, we are unaware of any data supporting this bill.”

6. Prior Legislation

AB 2264 (Arambula, 2024) would require an employee to obtain and maintain a heat illness prevention training certification from CalOSHA within 30 days after the date of hire and require an employer to reimburse the employee for training time.

SB 623 (Laird, Chapter 621, Statutes of 2023) extended the workers’ compensation PTSI presumption for specified public safety personnel and required the Commission on Health and Safety and Workers’ Compensation to submit two reports to the legislature regarding PTSI.

AB 1643 (Rivas, Chapter 263, Statutes of 2022) required, on or before July 1, 2023, the Labor and Workforce Development Agency to establish an advisory committee of specified representatives to evaluate and recommend the scope of a study on the effects of heat on California's workers, businesses, and the economy.

SB 1159 (Hill, Chapter 85, Statutes of 2020) created a rebuttable presumption that illness or death related to COVID-19 is an occupational injury and therefore eligible for workers’ compensation benefits.

SB 542 (Stern, Chapter 390, Statutes of 2019) created a rebuttable presumption for specified peace officers that a diagnosis of posttraumatic stress injury is occupational and therefore covered by workers’ compensation.

AB 2676 (Calderon, 2012) would have made it a clear misdemeanor, punishable by jail time and fines, for failure to provide water and shade, as specified, to employees. This bill was vetoed by Governor Brown, who stated “In recent years, California has enhanced its existing safety regulations to protect workers in all outdoor industries - - implementing the most stringent standards in the nation. Since these standards were adopted, enforcement has improved and compliance has increased…While I believe enforcement of our heat standards can be improved, I am not convinced that creating a new crime -- and a crime that applies only to one group of employers -- is the answer.”

AB 2346 (Butler, 2012) would have, among other things, made growers and the farm labor contractors they hire jointly liable for failure to supply farm workers with shade and water. In his veto message, Governor Brown stated “I am convinced that these standards should be improved, but this bill is flawed: it would create through legislation a new enforcement structure that would single out agricultural employers and burden the courts with private lawsuits. I believe the regulatory process is more flexible and the better way to improve standards for farm workers.”

AB 805 (Chu, 2005) would have required CalOSHA to adopt heat illness standards. This bill was held in the Senate Committee on Appropriations.

SUPPORT

United Farm Workers (Sponsor)

California Labor Federation

California Rural Legal Assistance Foundation

OPPOSITION

Agricultural Council of California

American Property Casualty Insurance Association

Association of California Egg Farmers

Brea Chamber of Commerce

Building Owners and Managers Association

California Association of Joint Powers Authorities

California Association of Wheat Growers

California Association of Winegrape Growers

California Bean Shippers Association

California Business Properties Association

California Chamber of Commerce

California Coalition on Workers’ Compensation

California Cotton Ginners and Growers Association

California Farm Bureau

California Fresh Fruit Association

California Grain and Feed Association

California League of Food Producers

California Pear Growers Association

California Seed Association

California State Floral Association

California Strawberry Commission

Carlsbad Chamber of Commerce

Corona Chamber of Commerce

Cupertino Chamber of Commerce

Family Business Association of California

Family Winemakers of California

Fontana Chamber of Commerce

Greater Conejo Valley Chamber of Commerce

Greater High Desert Chamber of Commerce

Imperial Valley Regional Chamber of Commerce

La Cañada Flintridge Chamber of Commerce

Long Beach Area Chamber of Commerce

Modesto Chamber of Commerce

NAIOP California

National Federation of Independent Business

Nisei Farmers League

Newport Beach Chamber of Commerce

Pacific Egg and Poultry Association

Rancho Mirage Chamber of Commerce

Santa Maria Valley Chamber of Commerce

Santee Chamber of Commerce

Simi Valley Chamber of Commerce

Tulare Chamber of Commerce

West Ventura County Business Alliance

Western Agricultural Processors Association

Western Growers Association

-- END --

1. Your Area WorkHeat, Climate CHIP, https://www.climatechip.org/your-area-heat-effects ↑

2. Mitchell, Diane C. PhD; Castro, Javier BS; Armitage, Tracey L. MS; Vega-Arroyo, Alondra J. BS; Moyce, Sally C. PhDc; Tancredi, Daniel J. PhD; Bennett, Deborah H. PhD; Jones, James H. PhD, DVM; Kjellstrom, Tord PhD; Schenker, Marc B. MD, MPH. Recruitment, Methods, and Descriptive Results of a Physiologic Assessment of Latino Farmworkers: The California Heat Illness Prevention Study. Journal of Occupational and Environmental Medicine 59(7):p 649-658, July 2017. ↑

3. Ibid. ↑

4. Farmworkers, Department of Housing and Community Development, April 3, 2024, https://www.hcd.ca.gov/planning-and-community-development/housing-elements/building-blocks/farmworkers ↑

5. Postcard from California: In climate crisis, farmworkers need more protection from heat, The New Lede, July 26, 2023, Postcard from California: In climate crisis, farmworkers need more protection from heat - The New Lede ↑

6. Death in the Fields, Desert Sun, April 4, 2024, https://www.desertsun.com/story/news/2015/11/19/death-fields/74058984/ ↑

7. Brian Edwards and Jacob Margolis, Why California Workers Are Still Dying From Heat Despite Protections, CapRadio (Aug. 25, 2012), https://www.capradio.org/articles/2021/08/25/why-california-workers-are-still-dying-from-heat-despite-protections ↑

8. Norcal Lost its Only BOI Investigator, Cal-OSHA Reporter, March 15, 2024, https://www.cal-osha.com/flash-report/norcal-lost-its-only-boi-investigator/ ↑