Conservative Courts and the Filibuster Are Blocking Heat Protections for Farmworkers

As the climate warms, more outdoor laborers are dying.

Farm workers clear out hosing which was used to irrigate an okra field on July 13, 2022 near Coachella, California.Mario Tama/Getty

In the fertile plains of Washington State’s Yakima Valley, maximum summer temperatures typically approach 90° F, meaning sweaty, potentially dangerous work for the people who harvest the region’s bounty: 77 percent of US-grown hops, a huge portion of our apples, and plenty of pears and cherries as well. But for the last two years, fierce heat waves have descended, making an uncomfortable job even more punishing. Starting on July 16, Yakima experienced eight straight days of triple-digit temperatures, peaking at a demonic 108° F, reached both on July 28 and July 29. 

Under emergency rules for outside labor adopted during a record-smashing summer-2021 heat wave and reinstated this year, when the temperature hits 89° F, Washington employers have to provide workers with a paid 10-minute break, in full shade with the opportunity to sit, every two hours; and enough “‘suitably cool’ water to allow workers to drink at least one quart each per hour.” These measures have helped keep workers safe, but aren’t quite enough, says Yakima-based Adriana Cruz, an organizer at the Fair Work Center, a Washington group that defends workers in low-wage sectors like agriculture and food service.

When I caught up with her in late July, she had just met with several apple pickers. To avoid extreme heat and interruptions from required breaks, the workers told her, farm managers have pushed harvest shifts into the early hours, starting around 4:30 a.m and ending late morning, when the temperature approaches the 89° F threshold. Even so, things can get perilously hot. One reason is that the Washington rules don’t account for humidity, which typically isn’t a concern in semi-arid Yakima. “But because of the heat, [growers] need to be watering orchids pretty frequently,” says Cruz. Irrigated ground in 80°-plus weather can create pockets of humidity that make people working outside feel much hotter. 

One apple-orchard picker told Cruz that her crew stopped working at noon last week, with the temperature over 90° and irrigation-related humidity building. “She told me it was a horrible feeling, because she was nauseous, dizzy, and having trouble breathing,” Cruz says. On top of the sweltering weather, pickers have to climb a ladder to reach the apples, and “even the actual ladder gets really hot, and it’s really hard to touch it without burning yourself in these temperatures.” 

Yakima’s harvesters have it better than their outdoor-toiling peers in most of the United States. As the climate warms, the frequency of US heat waves has nearly tripled since the 1960s, and they’ve also gotten more severe and longer-lasting. People who make their living outdoors have paid a severe price. Back in 2008, the US Centers for Disease Control calculated that crop workers die from heat stress at 20 times the rate of non-farm employees. A 2021 analysis of Bureau of Labor Statistics data by National Public Radio and Columbia Journalism Investigations found that heat-related fatalities among US workers have doubled since the early 1990s.

And it’s only going to get worse. In a 2020 paper, University of Washington researchers calculated that the average number of “days spent working in unsafe conditions” due to excessive heat will likely double by mid-century, and triple by the end of it. Yet Washington is one of just four states with specific rules to protect workers from dangerous heat, along with California, Oregon, and Minnesota. Legislatures in Nevada, Maryland, and Colorado have passed laws requiring state agencies to develop heat standards for workers, but they haven’t come into effect yet. And no federal standards on working in the heat exists. 

Under federal labor law, employers are required to “assure safe and healthful working conditions” on the job. The agency that exists within the Department of Labor to enforce that standard, the Occupational Safety and Health Administration, occasionally rolls out rules designed to protect workers from specific threats that might otherwise fall through the cracks. Back in 1983, for example, OSHA introduced rules requiring employers to train and inform workers about how to avoid exposure to toxic chemicals on the job. Last June, OSHA released emergency rules designed to protect healthcare workers from Covid-19—a move the Trump Administration’s labor department had refused to make despite severe pressure from worker advocates. 

Last September, in the wake of the hottest US summer on record, OSHA initiated a rulemaking process to develop a workplace heat standard that could ultimately bring the rest of the United States in line with Washington and its west coast peers in requiring paid, shaded breaks, and access to cool drinking water when temperatures hit hazardous levels. In its announcement, OSHA stressed that humidity should be accounted for in setting the threshold. But the federal process grinds at a slow pace. A 2012 US Government Accountability Office study found that the time between initiation and fruition for new safety and health standards averages seven years—and can take as long as 19 years. 

Given the present and growing menace of heat stress for workers, that’s too little, too late, say many advocates. In a report released in June, the progressive advocacy group Public Citizen urged the Biden OSHA to release emergency rules to protect workers “while it continues the slow process of proposing and finalizing a permanent standard.” 

But the conservative turn of federal courts in recent years, including most spectacularly the US Supreme Court, makes such a move is vulnerable to legal challenge. “I think the current judiciary would not permit OSHA to issue an emergency standard for heat,” David Michaels, OSHA administrator under former President Barack Obama and current George Washington University professor, told Mother Jones. “A heat standard is clearly a high priority for OSHA, but the standard- setting process is broken, so unless Congress intervenes and passes legislation that lets OSHA move faster, it will take several years for the agency to issue a standard.”

In 2021, a group of senators including Sherrod Brown (D.-Ohio), Elizabeth Warren (D.-Mass.), Bernie Sanders (I.-Vermont), and Corey Booker (D.-N.J.) co-sponsored a bill that would require OSHA to enact a “final standard on prevention of occupational exposure to excessive heat” within 3.5 years of its being signed into law. They called the bill the “Asuncion Valdivia Heat Illness and Fatality Prevention Act,” named after a California farmworker who died of heat stroke in 2004 “after picking grapes for 10 straight hours in 105 degree temperatures.” Instead of calling an ambulance, the bill’s text adds, “his employer told his son to drive Mr. Valdivia home. On his way home, he started foaming at the mouth and died.” 

As the summer of 2022 swelters on, Sen. Brown staged a press conference promoting the bill on July 20, declaring that, “We know too many workers still work in dangerous conditions, putting their health and safety on the line every day to provide for their families. There’s not much dignity in a job where you fear for your health or your life.” The House version of the bill advanced through the House Education and Labor Committee on July 27. Yet it remains stuck in the Senate, unlikely to get a vote, much less achieve the 60-vote threshold required to overcome the filibuster, given that no Republican senators signed on as sponsors. “Unfortunately, Republican senators haven’t shown any interest in joining us yet,” Sen. Brown wrote in an emailed statement. “I’ll continue to work with my colleagues to find a path forward for pro-worker legislation like the Asuncion Valdivia Heat Illness and Fatality Prevention Act.”

Meanwhile, in the first week of August, most of the country languishes under a heat index (a measure that combines heat and humidity) that requires “extreme caution” to remain safe while being outside. A lot of people will continue making their living relatively unbothered, cooled indoors by air conditioning. Others don’t have that option. 

More Mother Jones reporting on Climate Desk

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In-depth journalism that investigates the powerful takes real money and is so damn important right now.But it doesn’t take a Mother Jones investigation to know that billionaires and corporations will never fund the type of reporting (like they do politicians) we do that exists to help bring about change. Instead, our mission-driven journalism is made possible by people power, and has been for 46 years now since our founding as a non-profit.

In “TITLE TK” Monica Bauerlein writes about the perilous moment we’re in, and why it’s so important that we raise $325,000 by the time November’s midterms are decided so we can be ready to throw everything we have at the big issues facing the nation no matter what happens. Please help MoJo’s people-powered journalism with a donation today.

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