It's hot. For farmworkers without federal heat protections, it could be life or death

SUNNYSIDE, Wash. — Lorena Abalos is no stranger to the fields of Washington state. She picked cherries and blueberries under the hot summer sun here for years.

It was not just a job but a way of life. Her son Andy joined her when he turned 13.

"She needed help to pay for food," Andy recalled.

But in the summer of 2021, things changed for Abalos. That year, a heat wave swept across the Pacific Northwest. Temperatures hit triple digits for weeks on end.

"He was so little," Abalos said in Spanish. "I no longer wanted to take him when we started to go in at 3 a.m. because it was very dangerous. We would run into snakes, other animals and we pick blindly because they gave us a little lamp and we barely see our hands."

Due to the heat, the harvest times got earlier. Picking berries in the hot sun is a danger to both the fruit and the workers.

"It was really hot and I would start feeling like I was about to pass out," Andy remembered.

The heat dome that blanketed the Pacific Northwest in 2021 is being repeated across the southern U.S. this year. Record temperatures have engulfed states like Texas with no relief. Like that past summer for the Abalos family, the heat is hardest for the people who work in the unforgiving sun day after day.

Abalos and Andy worked under a tarp in place to prevent birds from getting the berries. She recalled one day when the heat became too much.

"[A woman I worked with] told me her head hurt and I told her you have to step outside to get water and shade," Abalos said. "But we didn't even have shade. She began throwing up. We had to call an ambulance."

The blazing hot temperatures, which lead to the deaths of farmworkers and others across the Pacific Northwest that summer, led the Biden administration to move forward on one of the president's campaign promises: creating heat protections for workers. But the rulemaking process is slow and two years later — as another heat dome causes deaths among farm workers and others — it is still not done.

"Addressing heat illness and addressing it specifically through rulemaking is one of our top priorities," said Doug Parker, assistant secretary for Occupational Safety and Health at the Labor Department. "Heat is particularly important because of the broad range of workers that it affects and because of the issues of equity that are involved."

"So many workers who are disproportionately affected by heat are low-wage workers who have jobs outside [and] are often immigrant workers, workers of color," he explained.

Parker told NPR he is hearing concerns about workplace safety in southern states that have faced excessive heat warnings for several weeks. The heatwave has reignited the calls for a federal rule, particularly after Texas Gov. Greg Abbott eliminated city and county ordinances for mandated water breaks.

There are limited protections against heat for outdoor workers

The Bureau of Labor Statistics estimates that environmental heat exposure claimed the lives of 36 workers in 2021. In 2020 that number was 56. In examining BLS data from 2011-2021, an average of 43 workers died due to environmental heat each year.

"That's what's been reported but that's historically been an undercount when it comes to heat, both in terms of deaths and heat-related illness," Parker said of the numbers.

Labor advocates argue that for farmworkers, who are more likely to be undocumented, there is an added fear of speaking up or voicing concerns over workplace issues.

"Particularly with vulnerable workers, we recognize that there's work that we need to do in building trust," Parker said. "The complaint rate from agriculture workers, for example, is much lower than it is in other industries, despite the fact that we see higher fatality rates. And this is a direct result of lack of knowledge and lack of trust."

The Occupational Safety and Health Administration, the federal agency that oversees workplace safety, does have recommendations related to the heat.

It explains what employers should do when temperatures soar to 91 degrees and higher, and has a general requirement to keep workers safe from hazards on the job, but does not explicitly require the work to stop.

Despite workers having rights, regardless of specific rules, Parker said more needs to be done to reach them.

OSHA is currently in one of the many steps toward creating a permanent rule around extreme heat conditions — it is consulting small businesses to ensure that a heat rule doesn't present undue burdens.

This would be a rule for both indoor and outdoor workers and would take into account other factors like humidity levels and direct sunlight, Parker said, which makes it complex. Complicating things further: the potential for a change in administration next year.

"If there's a change in administration, a new administration may take a different approach," said Parker. "The 2024 elections will likely have consequences for our rulemaking effort."

Still, the heat doesn't wait for rules or elections. Parker said he has already received notifications for deaths out of this summer's heatwave in the South that the agency will begin investigating.

As some states take matters into their own hands, workers are still dying in others

The state of Washington, where Abalos worked in the fields, will have a permanent heat rule effective July 17. It comes after two years of temporary emergency rules in place from when the heat dome affected the state.

The rule would encourage "cool-down rest periods" beginning when temperatures reach 80 degrees. It specifies that employees must "be allowed and encouraged to take a preventative cool-down rest in the shade or using another means provided by the employer to reduce body temperature when they feel the need to do so to protect themselves from overheating." There are also new rules regarding access to shade, cool drinking water, and mandatory rest periods when the temperature breaches 90 and 100 degrees.

Abalos is now working for the United Farm Workers, a farm labor union and advocacy organization, under a new partnership with the Agriculture Department to help the farmworker community. This includes visiting fields and informing workers about new rules and their rights.

For many farmers, the requirements are a continuation of what they have been doing the last few years since the state began imposing emergency rules.

"In general managing around heat stress and protecting workers from high temperatures in central and eastern Washington is not something new for our state," said Jon DeVaney, president of the Washington State Tree Fruit Association. But the new rule comes with other complications for farmers such as tabulating the final payroll for workers who are paid by how much they harvest and a potential rush for supplies like shade tents.

"They will have to get some specific equipment," said DeVaney. "And if everyone is buying them all at the same time to meet the deadline, that could be a challenge for some employers. And then there will be issues around paid breaks that are taken at an employee initiation, where the employee can decide when to take a paid break."

Some farmers like Kevin Knight say workers at times may not want to take breaks — especially if they are paid piece rate — meaning they are paid depending on much they pick. Any breaks – even those paid at minimum wage — could cut into their bottom line.

"When they're picking cherries, they don't want to take time out because it costs them money," Knight said. "Mandatory tree breaks irritate them."

Knight added that often they are not working in the hottest hours because handling fruit, especially berries, in the hot weather can ruin the crop. That often means early morning starts.

Four other states, California, Oregon, Colorado and Minnesota, have their own heat protections. Oregon and Colorado enacted rules in the spring of 2022.

But advocates warn it's not just a summer month problem and these rules don't stop deaths in other states. On June 28, OSHA fined Florida farm labor contractor Rafael Barajas $15,000 after the death of a 28-year-old visa worker on Jan. 1. Parker said this was the first workplace death of the year due to heat.

"The first day of 2023 was this young worker's last because his employer failed to take simple steps to protect him from heat exposure, a known and dangerous hazard," said OSHA Area Office Director Condell Eastmond in a statement. "Had Rafael Barajas made sure workers were given time to get used to working in high temperatures and provided them with water, shade and rest, the worker might not have lost his life."