Communications / Technical Issues / Technical Issue

Gov. Newsom Vetoes SB 1299: Heat Injury Presumption for Outdoor Agricultural Workers

Date: 09/30/2024

On Saturday, Gov. Newsom vetoed SB 1299 (Cortese), the UFW-/CAAA-backed bill that would have created a presumption of compensability for heat injuries among outdoor agricultural workers if a WCAB judge determined that their employer was out of compliance with Cal/OSHA’s Outdoor Heat Illness Prevention Standard. In June, a CWCI Legislative Impact Analysis of SB 1299 found that it would likely create more challenges than it would solve, entail significant administrative frictional costs, and was unlikely to have an appreciable impact on farmworker safety. Among the specific findings:

Out of 100,777 California workers’ compensation claims by farmworkers from 2018-2023, only 659 (0.65%) were heat-related illness claims—a proportion comparable to other industries covered by Cal/OSHA’s Outdoor Heat standard, such as landscaping (0.65%), construction (0.67%) and mining, oil and gas extraction (0.56%).
The small share of ag claims involving heat illnesses reflects the success of Cal/OSHA’s existing outdoor heat illness standard, which requires access to shade when temperatures are 80°F or higher (and upon request when temperatures are less than 80°F), monitoring of employees, supervisor and employee training, and a heat illness plan. If temps exceed 95 degrees, it also requires employers to initiate high heat procedures and ag workers must take mandatory 10-minute cool-down breaks every 2 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 1st 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 exclusively on California found that this phenomenon largely ceased following implementation of the Cal/OSHA Outdoor Heat Illness Prevention Standard in 2005.

The overall workers’ compensation claim denial rate (for all types of injuries) for outdoor ag workers is 11.0%, which is below the 12.4% to 13.3% denial rates for other outdoor occupations covered by the outdoor heat standard and the 14.7% denial rate for all California workers’ compensation claims.

The SB 1299 presumption would shift the initial determination of whether a Cal/OSHA heat illness standard violation occurred from the Occupational Safety & Health Appeals Board to the 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.

Because workers’ compensation presumptions shift the burden of proving that a claim is work-related from the employee to the employer they have historically been limited to police and firefighters for injuries such as cancer or heart disease that arise from the unique risks inherent in those public service jobs, and even then, only if 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 have opened the door to private sector presumptions, CWCI’s analysis indicated that such evidence is lacking. The CWCI Legislative Impact Analysis, which was distributed to policymakers in Sacramento and cited in the Assembly Insurance Committee hearing on SB 1299, is available here.

Governor Newsom’s veto message, which cited ongoing efforts to protect workers from the effects of climate change, concluded that “conditioning a workers’ compensation presumption on compliance with standards set and enforced by another regulatory division is not an effective way to improve working conditions.”