Worker safety is critical, and nursery and greenhouse operations make it a priority.
Our industry has learned a lot from the dynamic and harsh weather events of the past year. But Oregon agriculture has been put back on its heels by a new set of heat and smoke rules, created under pressure from labor and farmworker advocates. These rules seem to carry a presumption that employers are careless with workers’ safety, when that’s not the case. Growers have every interest in protecting their workers, not to mention that it’s the right thing to do.
These latest rules, created by the Oregon Occupational Safety and Health Administration (Oregon OSHA), create problems rather than solving them, while exposing regulators’ unfamiliarity with ag.
What is rulemaking?
Oregon OSHA works for the governor. The agency is responsible for creating and enforcing the standards for which businesses must adhere to on a certain topic.
In administrative law, rulemaking is the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking. To topline it, they take policy and grind it into a set of rules.
I have participated in numerous rulemaking committees on behalf of our industry. It’s almost always grueling, and often appalling to witness. Political agendas are out for all to see.
Currently, the OAN advocacy team is engaged in 45 different rulemaking processes, but not really by choice. If we aren’t there, our voice disappears.
Our usual approach is threefold: 1) push for common sense, 2) make sure rules don’t exceed the intent of the legislation, and 3) work diligently to curtail expansive administrative policies by state agencies.
Over the past decade, the OAN has earned some landmark legislative victories. We secured estate tax reform, won support for water supply programs, and secured unanimous passage of a law preventing county assessors from taxing hoop houses to the tune of $2,000 per structure.
But aside from the hoop house law, these wins didn’t end up being wins. They became victims of the rulemaking process. The people who opposed our bills were able to harm the intent of the legislation by making it overly complex, and no longer helpful to our cause. No wonder I often say that rulemaking is where good bills go to die.
Why OSHA rules miss the mark
Oregon OSHA’s new heat and smoke rules don’t just miss the mark, they miss the boat. The “heat dome” weather event the state experienced last summer devastated operations, and our industry was tremendously saddened by the death of a worker at a nursery operation.
Climate models show we could have another hot summer. We need clear guidelines for agricultural producers. In fact, we welcome the opportunity to talk about the good practices employed to protect workers.
Unfortunately, Oregon OSHA set out trying to write the most aggressive heat and smoke rules in the country. The rules are completely unworkable, and the OAN and other industries have been pounding the table to shrugging shoulders.
To name a few examples, the trigger for heat illness prevention methods begins at 79 F, and operations could be cited when the heat index surpasses 80 F. Those apply indoors and out.
If an employer fails to provide adequate shade or access to water, especially as the temperature creeps above 90 F, the violation is quite serious.
OSHA does not have the authority to push wage rules, but let us not get too comfortable that the public relations factor does not put ag in a bad light. Many of the proponents of the restrictive rule pushed for employees to be sent home when 90 F is hit — with pay.
Proponents often cast aspersions that growers treat their employees with complete disregard for their health and safety. We have pushed back hard on these narratives. Oregon ag workers are used to working hard, both inside and outside. Temperatures in our fine corner of the country rarely jump to a disastrous level overnight. Workers acclimate naturally.
What is OAN doing
Your OAN leadership is not standing around as this happens. We helped fund a lawsuit to put the OSHA rules on hold. We’re not trying to absolve ourselves of the need to have a plan for heat events.
Rather, we want to reset the discussion, so that rules and enforcement action can be grounded in reality. We are pushing for more oversight by the state legislature. Nobody elected OSHA, and they are operating without much common-sense pushback by the executive branch. OSHA must not overstep its authority.
At the same time, we must educate legislators and the next governor, taking office in 2023, on what our grower community already does to protect workers.
To inform this discussion, I have asked many of our members what they do on hot days. The answers are not really surprising.
They start early and knock off before temperatures hit their peak. They talk to employees about the signs of heat exhaustion and encourage them to watch out for each other, so it can be prevented in real time. Some just send their crews home when it gets past 94 degrees.
But ag work is ag work. It is hard, it is physical, and our workers are good at it. My advice is to have a plan ready for the summer, use common sense like you normally do, and let us hope and pray that we do not see another 117 F day.
