May 11, 2022 update: The state of Oregon this week adopted permanent new rules aimed at protecting farmworkers and other laborers from extreme heat and wildfire smoke. The rules go into effect this summer.

July 9, 2021 update: The Oregon Occupational Safety and Health Division yesterday adopted what may be the nation’s strongest worker protections from extreme heat, including increased access to shade and cool water.

Fortunately, Sumano knows his rights, for which he has fought as a member of the labor union United Farm Workers (UFW). He was aware that California’s heat standard requires that outdoor workers receive breaks, potable water, and shade to protect them from the heat. And he brought up the concern with his employer who accommodated it with more rest periods, he said. While this doesn’t resolve structural issues in the agricultural system that can perpetuate unhealthy conditions, it’s significantly better than the protections in most states, as detailed in a new report.

Published by Vermont Law School’s Center for Agriculture and Food Systems (CAFS), “Essentially Unprotected” documents farmworkers’ dire lack of critical labor protections from extreme heat and pesticide exposure. A timely examination of the laws in 13 agricultural states and federal regulations, the report reveals dangerous oversights in the laws protecting farmworkers’ health. For instance, only three states—Washington, Minnesota, and California—have any regulations safeguarding workers from escalating temperatures. As the number of unsafe hot days increases, more farmworkers will be endangered without stronger laws and, as the report emphasizes, equally rigorous implementation and enforcement.

The consequences can be fatal: Farmworkers die of heat-related causes at a rate of 20 times that of all other professions. A majority migrant and undocumented workforce, farmworkers are especially vulnerable to extreme heat, not only because of their direct exposure, but also because of a lack of other social and labor protections.

“The food system in the U.S. could be said to be built on the foundations of racial capitalism, operating to produce wealth for a small group, at the expense of public health, the environment, and rural communities,” reads a report titled “Essential and in Crisis,” written by three researchers at John Hopkins Center for a Livable Future (CLF), and released in concert with the CAFS report.

The CLF report details the longstanding injustices compromising farmworkers’ health, including gender-based violence, crowded housing, a lack of health insurance, food insecurity, a fear of speaking out due to retaliation or deportation, and exemptions from critical labor laws. The pay structure of the agriculture system, where many farmworkers are paid a piece rate, can also incentivize productivity over farmworkers’ health and safety.

Together, the reports provide a stark view into the largely ignored public health risks facing the 2.4 million farmworkers in the U.S., including 524,000 child workers, whose lives and labor have long been devalued. Although COVID-19 has heightened public awareness of the dangerous working conditions faced by farmworkers, the reports call attention to the fact that this hasn’t led to substantive policy change, including from extreme heat. And while advocates have long demanded a federal heat standard, which would provide workers with basic enforceable protections from dangerous temperatures, federal regulators and lawmakers have yet to put one in place.

“It’s important that people understand that this is the foundation of our food system, and it’s horrifying,” said Laurie Beyranevand, the lead author of the report, a professor of law, and director of CAFS. As conversations develop around how to rebuild the U.S. food system in the wake of COVID-19, she sees this an opportune time to create a healthier workplace for farmworkers. “It’s an important time to consider how to rectify it,” she said.

There’s No Enforceable Federal Heat Standard

“Any underlying medical condition would likely be worse, if put through the stress of excess heat,” he said, given that too much heat can affect every system in the body. There is also emerging research studying the connections between heat illness, dehydration, and long-term kidney damage and disease, an epidemic among agricultural workers in Central America.

Despite the known risks, no federal heat standard exists in any industry. As the CAFS report notes, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) states that employers with employees working in extreme heat are responsible for their safety, but it’s not enforceable. “Without a standard, there’s basically just guidance,” said Beyranevand. “[An employee] could say, ‘My employer didn’t follow the guidance.’ But that doesn’t really mean anything.”

Amplifying a long-time call by farmworker advocates, the report’s authors recommend that OSHA establish a federal heat standard, creating an enforceable set of criteria, like temperature thresholds and shade requirements. This is far from a new idea. In fact, it was first suggested in 1972 by the National Institute for Occupational Safety & Health, which was charged with recommending health and safety standards at the time. The recommendation was revised in 1986 and again in 2016, but has yet to be heeded.

As average summer temperatures—and the stakes for workers—continue to rise, advocates say the time is right to try again. They point to several avenues to enact a federal standard. In May, Public Citizen, a consumer and health advocacy group, wrote a letter to the Biden Administration to direct OSHA to “begin the long-overdue process of issuing a workplace heat standard.” The Asunción Valdivia Heat Illness and Fatality Prevention Act, which was introduced in Congress this March, would similarly direct OSHA to establish a heat standard and is widely supported by farmworker advocacy groups. The bill is named after a farmworker who died of heatstroke in 2004, after working a 10-hour day and collapsing in a California grape field.

Two years after Valdivia’s death, California passed the first heat standard in the nation to protect outdoor workers from heat illnesses. So far, it has had a significant impact, according to the state’s OSHA agency, which told Civil Eats in an email that the number of fatal heat-related illnesses it is notified of has decreased. While there were 10 in 2005, there were only three in 2019 and five in 2020.

“Just having these protections saves lives,” said Teresa Romero, the president of UFW, who is pushing for the act. “We’re not asking for much, other than providing cold water for farmworkers, shade when they have their rest periods, a 10-minute break if the temperature gets high enough, and trainings so farmworkers can recognize the symptoms of heat illness.”

‘The Laws in the Field Are Not the Laws in the Books’

“Although Cal/OSHA can just show up and make sure this is being done, they don’t have the manpower,” Romero said. The lack of staff and resources is a broader issue at OSHA, which under the Trump administration completed the smallest number of inspections in the agency’s history. On top of that, many farmworkers are not comfortable reporting safety violations directly to OSHA. “They’re afraid to go to any government entity, especially if they are undocumented,” said Romero.

Fortunately, farmworkers are comfortable going to UFW, which has a unique arrangement with the state of California that allows the group to report heat violations on the behalf of farm workers and on its own behalf. “It has made a huge difference. Because they do reach out to us,” said Romero. “We do what we can to make sure that Cal/OSHA is enforcing these because it does save lives.”

The union has a texting program and a Facebook group for farmworkers and will often make in-person appearances at farms to educate workers on their rights. If a farmworker is experiencing an issue, UFW will walk them through their options and rights, and escalate the complaint to Cal/OSHA if necessary.

In his experience as a strawberry farmworker, Amadeo Sumano said that it is more common to see provided shade, worker education, and better labor standards at farms with a union. However, only 1 percent of farmworkers across the country are in a union, and most states do not protect farmworkers’ rights to collectively organize or form unions.

For example, in Florida, the leading citrus-producing state, there is no heat standard, nor do farmworkers have the labor protection to form unions. This leaves people in one of the hottest states with no real safeguards from extreme heat. “Conditions are so bad for farmworkers, especially for immigrants, and if they’re undocumented, they’re afraid to report at all,” said Jeannie Economos, the pesticide safety and environmental health project coordinator at the Farmworker Association of Florida.

Interlocking Crises

“Warmer temperatures potentially increasing pesticide use and volatility,” according to the CLF report. Most pesticide exposure occurs from pesticides drifting from nearby fields or residue from crops, the report notes, and often from fields that aren’t properly labeled to alert farm workers to the exposure.

And yet, the U.S. Environmental Protection Agency’s (EPA) pesticide regulations are, according to the CAFS report, geared toward “protecting consumers, the environment, and wildlife, but not individuals who are not the ones most often exposed to pesticides at dangerous levels—farmworkers and their families.” The report points to how the EPA’s risk assessment overlooks “chronic exposure for certain industries, risks specific to pregnant women and children, or the interactions between multiple pesticides.”

The EPA also only requires pesticide labels to be printed in English, which can prevent farmworkers who primarily speak Spanish and Indigenous languages from accessing important safety information. “The significance of this cannot be understated, as EPA has previously acknowledged that ‘[e]ven minor errors in pesticide application may lead to chronic exposure to pesticides, which is associated with long-term health issues,’” reads the CAFS report.

Then there’s the compounded effects of both pesticide and heat exposure. While this is not well-studied, there are some clear, interlocking risks. For instance, Economos points out that protective gear, which safeguards workers from pesticides, may also make them more likely to overheat. “To protect themselves from pesticides, [farmworkers] wear a long-sleeve shirt; they wear a hat, gloves, sometimes they wear long pants,” said Economos. “They’re not going to work in the field in shorts.”

Farmworkers may also wear layers to protect themselves from direct sun exposure and other dangers, including the epidemic of sexual harassment and assault in farm fields.

“Sometimes women wear bandanas around their face, because of fears of sexual harassment, so that just increases your body temperature,” added Economos.

Deeper, Structural Reform

Despite working one of the most dangerous jobs, farmworkers have long been exempt from key federal labor protections afforded to other industries: Since 1935, they have lacked the right to collectively bargain and since 1938, they have been exempt from overtime pay. (Some states, like California, have extended their own rights to these workers, however.)

These exemptions were (and still are) a way to perpetuate racial capitalism among a largely migrant and undocumented workforce, according to the CLF report: “The initial exclusion of farmworkers from U.S. labor protections in the 1930s was driven by agricultural interests’ desire to maintain the Southern plantation economy that depended on the exploitation of Black workers.”

Just as many undocumented workers fear speaking out about unsafe work conditions, so too do the 12 to 18 percent of farmworkers employed as guestworkers through the H-2A visa program. The CLF report notes that guestworkers are not allowed to switch employers, which can lead workers to remain in unhealthy working conditions. “Even though it’s a different immigration status, there’s a similar fear [as the one undocumented folks feel] and there’s a similar deterrent to come forward,” said Iris Figueroa, the director of economic and environmental justice at Farmworker Justice, based in Washington, D.C.

H-2A workers are also especially at risk of heat stress, says Figueroa, when they move to a new region for the harvest season. She has seen cases where H-2A workers develop symptoms of heat stress during the first week or two of the job, because they are not yet adjusted to the climate. Crucially, California’s heat standard requires new workers to be monitored for signs of heat stress during the first two weeks, and the Asunción Valdivia Heat Illness and Fatality Prevention Act proposes a similar requirement.

Access to healthcare is also an important factor when it comes to the risks related to heat. “Given the lack of health coverage, and lower wages, many workers choose to forgo preventative care and only see a doctor when the situation is dire,” said Figeuroa.

These injustices—deeply embedded in the U.S. food system and immigration policy— speak to why a deeper restructuring is necessary to protect farmworkers’ health. So, how does this translate into action and policy? The reports’ authors suggest turning to farmworkers and long-time activists for solutions. There have been some examples of success in recent years, from California’s heat standard to Indigenous workers who organized the new Familias Unidas union in Washington state and successfully fought for better wages at a berry farm.

“We really uplift the power of collective farmworker advocacy,” said Sarah Goldman, one of the authors on the CLF report. “They’re highly skilled professionals who have real firsthand experience with the reality of climate change and heat-related illness.” It’s this knowledge, she adds, that is key to building a better food system for farmworkers and consumers alike, from the bottom-up.