CWCI Examines California’s Proposed Presumption for Agricultural Heat Injuries
June 17 2024 - 10:48AM
Business Wire
A bill that would give a presumption of compensability to
farmworker heat-related injury claims if the employer is found to
be out of compliance with Cal/OSHA’s outdoor heat illness
prevention standard would likely create more challenges than it
would solve, entail significant administrative friction costs, and
is unlikely to have an appreciable impact on agricultural worker
safety according to a California Workers’ Compensation Institute
(CWCI) study.
CWCI’s analysis of SB 1299 (Cortese) examines the population of
agricultural workers covered by the legislation, measures the
percentage of workers’ compensation claims filed by agricultural
workers that involve heat-related injuries, and compares the
percentage of heat-related claims in the agriculture sector to the
percentage for non-agricultural workers covered by the high-heat
procedures in the Cal/OSHA Outdoor Heat Illness Prevention
Standard. In addition, the analysis considers the impact of the
legislation on the California workers’ compensation system. Among
the findings:
- Despite global warming and climate change, there are very few
agricultural heat illness claims in California workers’
compensation. CWCI’s review of more than 3.2 million claims filed
by California workers from 2019 through 2023 found that only 659 of
the 100,777 claims filed by agricultural workers (0.65%) were due
to heat-related illness. That proportion was comparable to other
industries covered by the Cal/OSHA high heat standard, such as
landscaping (0.65%), construction (0.67%) and mining, oil and gas
extraction (0.56%).
- The small percentage of claims involving heat illnesses likely
reflects the success of Cal/OSHA’s outdoor heat illness prevention
standard, enacted in 2005 and amended in 2015. The standard
requires, among other things, access to shade and water, active
monitoring of employees who need to acclimatize to heat, supervisor
and employee training, and a heat illness plan. In addition, it
requires employers to initiate high heat procedures if the
temperature exceeds 85 degrees, and if the temperature crosses 95
degrees, agricultural workers must take a mandatory 10-minute
cool-down break every two hours. Employers also must inform their
workers that they may exercise their rights under the standard
without fear of retaliation and advise them of acclimatization
procedures and appropriate first aid and emergency responses to
heat illness.
- While several studies have found that increases in temperature
lead to increases in injuries overall, a recent UCLA study that
focused on California exclusively found that this phenomenon
largely ceased following implementation of the Cal/OSHA Outdoor
Heat Illness Prevention Standard in 2005.
- Outdoor agricultural workers have a workers’ compensation claim
denial rate of 11.0%, which is lower than the 12.4% to 13.3% denial
rates for other outdoor occupations covered by the Cal/OSHA outdoor
heat standard, and lower than the 14.7% denial rate for all
claims.
- The presumption created by SB 1299 would shift the initial
determination of whether a Cal/OSHA heat injury illness standard
violation occurred from the Occupational Safety and Health Appeals
Board to the Workers’ Compensation Appeals Board (WCAB). Given the
lack of subject matter expertise on the part of WCAB judges, and
the challenge of determining violations without citations from
Cal/OSHA, the administrative burden and frictional costs of SB 1299
would be significant.
Workers’ compensation presumptions shift the burden of proving
that a claim is work-related from the employee to the employer.
Because they represent an exception to the grand bargain of
workers’ compensation, they have historically been limited to
police and firefighters for specific injuries such as cancer or
heart disease that that may arise from the unique risks inherent in
their public service jobs, and even then, only when there is clear
and compelling evidence of a lack of hazard abatement, a high
incidence of injury, and a high denial rate. In the case of SB
1299, which would open the door to private sector presumptions,
CWCI’s analysis indicates such evidence is lacking. The Institute
has issued its analysis as an Impact Analysis report that is
available for free under the Research tab at www.cwci.org.
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Bob Young (510) 251-9470