Employer Obligations for Heat Illness Prevention during Harvest

This weekend, the weather forecasters predict temperatures in Napa County will reach 108 degrees with parts of Sonoma County and Mendocino County topping 112 degrees.  Even in the early hours, agricultural laborers working harvest may be exposed to high heat conditions.  What follows is a quick refresher for those employers with outside work areas on their legal obligations for heat illness prevention. We encourage all employers to “over-deliver” when appropriate on these standards.

The Cal/OSHA regulations require employers to:

1. Provide fresh water.

Employers must provide employees with fresh, pure, and suitably cool water, free of charge. Enough water must be provided for each employee to drink at least one quart, or four 8-ounce glasses, per hour and the water must be located as close as practicable to the work area. Employers are also required to encourage employees to drink water frequently

2. Provide access to shade.

When temperatures exceed 80 degrees, employees must be provided shade at all times in an area that is ventilated, cooled, or open to air and that is as close as practicable to the work area. There must be sufficient space provided in the shade to accommodate all employees taking rest. When temperatures do not exceed 80 degrees, employees must be provided timely access to shade upon request. Employees should be allowed and encouraged to take preventative cool-down rest as needed, for at least 5 minutes per rest needed.

3. Have high heat procedures in place.

High heat procedures are required of agricultural employers when temperatures exceed 95 degrees. The procedures must provide for the maintenance of effective communication with supervisors at all times, observance of employees for symptoms of heat illness, procedures for calling for emergency medical services, reminders for employees to drink water, pre-shift meetings to review heat procedures and the encouragement of employees to drink plenty of water and take preventative cool-down rest as needed.

Agricultural employers must additionally ensure employees take, at a minimum, one 10-minute preventative cool-down rest period every two hours in periods of high heat.

4. Allow for acclimatization.

New employees or those newly assigned to a high heat area must be closely observed for the first 14 days of their assignment. All employees must be observed for signs of heat illness during heat waves. A “heat wave” is any day where the temperature predicted is at least 80 degrees and 10 degrees higher than the average high daily temperature the preceding 5 days.

5. Train all employees regarding heat illness prevention.

Employees must be trained regarding the risk factors of heat illness and the employers’ procedures and obligations for complying with the Cal/OSHA requirements for heat illness prevention. Supervisors must additionally be trained regarding their obligations under the heat illness prevention plan and how to monitor weather reports and how to respond to heat warnings.

6. Have emergency response procedures. 

Employers must have sufficient emergency response procedures to ensure employees exhibiting signs of heat illness are monitored and emergency medical services are called if necessary.

7. Have a Heat Illness Prevention Plan.

Employers must have a written heat illness prevention plan that includes, at a minimum, the procedures for access to shade and water, high heat procedures, emergency response procedures, and acclimatization methods and procedures.

For questions regarding California obligations for heat illness prevention, contact Valerie Perdue at [email protected] or Greg Walsh at [email protected].

Winery and Vineyard Procedures for Hiring Seasonal Workers; Avoiding Problems in I-9 Audits by Immigration Services

Due to the necessities of hiring seasonal workers, many vineyards and wineries are faced with the task of verifying employees’ eligibility to work in the U.S. by maintaining Form I-9, Employment Eligibility Verification forms. Over the past year, the U.S. Citizenship and Immigration Services (USCIS) has increased its audits of employers’ I-9 files.  The USCIS has also been bringing criminal cases against employers for violating the I-9 requirements.  What this means to employers is that sloppy paperwork and poor documentation can cost you $1,000 per worker, and knowingly hiring an illegal immigrant can result in a $10,000-per-worker fine.
Here are some steps to help you avoid potential legal trouble with the USCIS:
  1. Take stock of your I-9 compliance and make sure you’re using the new version of the I-9 form; 
  2. Do not ask an applicant to complete an I-9 prior to making a job offer (unhired applicants can use I-9 information to allege that you are discriminating against them);
  3. Require all new hires to complete and sign Section 1 of the I-9 form on their first day of work;
  4. Review the employee-offered documents to make sure they are on the new version of the I-9’s list of acceptable documents and that they appear genuine (you are looking for obvious fakes, you are not required to go out of your way to question the authenticity of an employee’s offered documents which appear genuine);
  5. Do not ask new hires for any particular documents or for more documents than the I-9 requires; the employee chooses the documents, not you;
  6. Do not consider the expiration date of I-9 documentation when making hiring or firing decisions;
  7. Do calendar when documents that authorize an employee to work in the U.S. expire so that you may follow up (remember you do not need to re-verify identity documents such as a driver’s license or a passport);
  8. Do not keep the I-9 documents in the personnel file (to protect against discrimination claims keep the I-9 and supporting documentation in a separate file);
  9. Keep I-9 forms and copies of supporting documents for three years after the employee’s hire date or one year after his or her termination date, whichever comes later; and most importantly,
  10. Establish a consistent procedure for completing the I-9 forms and train your hiring managers on the procedure.
You can find more detailed information about I-9 documentation and procedures on the USCIS website at this Link to I-9 info

For specific questions about your businesses compliance you can contact Jen Phillips at [email protected]
Copyright Dickenson Peatman & Fogarty at www.lexvini.com