With the recent onset of unprecedented rainstorms, with yet another major front moving in this week and next week, planting and harvesting activities will be severely constrained.
Below are a few important recommendations to consider before engaging in agricultural operations due to excessive rain or flooding in your fields.
First and foremost, before you decide to conduct any type of field operation during the next two-week period, members are advised to check the daily weather forecast for rain conditions that will be occurring on the following workday. If excessive rain conditions are expected, it is recommended that you contact workers to not appear at work until otherwise requested to report.
Secondly, in those instances where employees report to work, but cannot begin or continue work because of excessive rain conditions or flooding, employees are to be immediately excused from work to return home. In such instances, there is no reporting time pay required under Section 5 of Wage Order 14-2001 (Reporting Time Pay). However, whenever workers are required to report to work and are not released completely from the workplace, but are required to standby until weather conditions improve, such standby time is to be paid at no less than the applicable minimum wage rate.
Third, working in excessive rain conditions can create workplace safety problems, as well as potential workers’ compensation claims for slips and falls in muddy or flooded rows. Therefore, the decision to work under such conditions should only be undertaken after you have evaluated all of the potential safety factors of working in a particular field.
Lastly, the perennial question is whether employees working in excessive rain conditions should be provided with boots and raincoats. In other words, personal protective equipment (“PPE”).
For example, in IWC Wage Order 14-2001, Section 9 (Uniforms and Equipment), Section (B), states that tools and equipment which are required by the employer, or which are necessary to the performance of a job must be provided and maintained by the employer. The standard also states that “This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board.”
In referring to the Cal/OSHA regulation, Title 8 C.C.R., Section 8414 with respect to personal protected equipment, subdivision (a) states “Whenever employees are exposed to hazards in the workplace, and where engineering or administrative controls are not effective in eliminating the hazards, personal protective equipment shall be provided.” A workplace hazard refers to “a situation within the workplace that has the potential to cause injury or adverse health effects for people…” [Safeopedia]
Also, under Section 8414, subdivision (f)(3) (Body Protection), the Cal/OSHA regulation states that “Acceptable rubber boots and raingear shall be provided and used where wet conditions are encountered.” [Emphasis added]
Thus, it appears that rubber boots and raingear must be provided where rain (wet) conditions are encountered in the workplace by the employees. This conclusion is underscored by the general statutes on workplace protection of employees. [Labor Code Sections 6401-6402.]
Section 6400(a) states “Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.” Furthermore, Section 6402 states “Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes, which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.” [ See also, Section 6403.]
Based upon the foregoing, it would appear that the Cal/OSHA safety regulation pertaining to personal protective equipment (PPE) does require the use of rubber boots and raingear where wet conditions are encountered. The regulation does not state whether these conditions must appear inside a commercial packinghouse, as opposed to a rain-soaked field with muddy and flooded rows.
Nevertheless, one could reasonably anticipate that employee advocacy organizations may argue that such protective equipment would be required when the workplace is subjected to such torrential rains.
If PPE is required by the employer, the employer is required to maintain it and may require a reasonable security deposit for its return at the end of the season. On the other hand, it is best to avoid these issues by not working in such inclement weather, unless absolutely required due to market or other demands. In such instances, the use of raingear is recommended to be provided. Under no circumstances should workers be required to work in open fields when there is thunder and lightning present or within earshot!
Authored by Robert P. Roy, General Counsel, Ventura County Agricultural Association. Reprinted with permission.
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