This comment raises the issue of OSHA protections for farmworkers and was submitted recently by Farmworker Justice.

Comment from Ruiz, Virginia; Farmworker Justice and California Rural Legal Assistance Foundation
Document ID:

This is comment on PROPOSED RULE: Walking - Working Surfaces and Personal Protective Equipment (Fall Protection Systems)
Docket ID:

August 23, 2010
OSHA Docket Office

Dear Sir/Madam:

The organizations listed below submit these comments for this docket, concerning the proposed revisions to the Walking-Working Surfaces and Personal Protective Equipment Standards (?Fall Protection Standard?) published in the Federal Register on May 24, 2010 (Volume 75, Number 99).

We strongly oppose the exclusion of agricultural work among the industries covered by the proposed standard.
We will present additional evidence at the forthcoming hearing detailing our opposition to this proposal, and in support of including agricultural workers in these protections.

I. Introduction

The vast majority of U.S. farmworkers have low incomes, no health insurance, and limited access to health care, making them particularly vulnerable to workplace hazards. According to the National Agricultural Workers Survey (NAWS), the farmworker population is largely immigrant, male, poor, socially isolated, with limited English proficiency, and with low educational attainment. While twenty-five years ago a significant proportion of farmworkers were African American, today 77% come from Mexico and Central America and 83% self-identify as Hispanic. Spanish is the native language of 81% of farmworkers; only 24% report being able to speak English well.

On average, the highest education level completed by farmworkers is 7th grade, with only 13% having graduated from high school; as a result, most farmworkers have low literacy skills or are non-literate. Farmworkers’ median annual income is only $10,000 – $12,499 and at least 30% earn incomes below the U.S. poverty line.

Over the last decade, increasing numbers of new migrants are arriving in the U.S. from indigenous communities in Mexico and Guatemala. Mixteco, Zapoteco and Triqui-speaking workers from the state of Oaxaca, Mexico are becoming a prominent component of the western migratory stream.

Many indigenous migrants are in more desperate economic circumstances than their Spanish-speaking counterparts. Cultural and language barriers make these workers easy prey for unscrupulous employers. Indigenous farmworkers often work in the most labor-intensive crops, such as strawberries, but are paid the least amount of money. Many are undocumented, and are more likely to accept  substandard working conditions, wages, and housing conditions, rather than risk retaliation by complaining. Agricultural work is one of the most dangerous jobs in the U.S. The hazards in conjunction with the poverty, vulnerability, and lack of knowledge about their workplace rights have exacerbated the safety and health of migrant farmworkers. Accordingly, this population is one in special need of protection, both due to the vulnerability of the workforce and the dangerous nature of the work.

Despite the uniquely dangerous work and vulnerable workforce, OSHA actually excludes farmworkers from most protections, rather than providing extra protections. Historically, OSHA has excluded farmworkers from the fall protection standard now being revised. As the principal agency dedicated to ensuring the safety of workers in America’s workplace, OSHA’s exclusions of and discriminatory treatment of farmworkers must end. OSHA can take one step towards ending this discrimination by including farmworkers in the fall protection standard.

II. Falls Are a Common Workplace Hazard in Agriculture

Agriculture consistently ranks as one of the three most hazardous occupations in the United States. In 2009, the fatality rate for workers employed in agriculture, forestry, fishing, and hunting was the highest rate for all workers at 26 per 100,000 workers, which was roughly eight times greater than the death rate for all workers (3.3 per 100,000 employees).1 One of the primary causes of workplace fatalities in agriculture were falls— in crop production falls resulted in 6% of all deaths; and in animal production, falls resulted in 9% of all deaths.

In 2008, the non-fatal injury and illness rate for workers employed in crop production agriculture was 5.3 per 100 workers, with 3.0 cases per 100 workers involving lost work time, job transfers or restrictions.2 These injuries included fractures due to falls, eye injuries from chemicals or debris ejected from machinery, lacerations from knives and machetes, strains, sprains and repetitive motion injuries from stooping, lifting and sorting, and a host of crush, contusion, and amputation injuries from working with farm equipment.

In 2001, NIOSH analyzed data from the Census of Fatal Occupational Injuries (CFOI), and found that most of the 166 fatal falls among agricultural production workers between 1992- 1997 were falls from elevation. Most prominent among fatal falls in agricultural production were falls from vehicles, machinery, or implements (19.9% of the total), falls from roofs (11.4%), farm structures (10.8%) and ladders (10.2%).3

Falls from orchard ladders are a major source of serious injuries in agriculture. A recent study found that nearly one-third (31%)of the 13,068 Workers’ Compensation Claims in Washington State orchards between 1996 and 2001 involving compensation for lost work time were for ladder related injuries which cost over $21.6 million over this six year period.4

Similarly, a 1991 analysis of injuries in Florida agriculture was conducted based on Workers' Compensation records. The analysis revealed that ?[f]alls accounted for nearly 25 percent of all serious disabling work injuries: 17 percent were elevated falls, 8 percent were same-level falls. Elevated falls accounted for 26 percent of the injuries in fruit and vegetable production occupations. Same-level falls accounted for 12 percent in both livestock and horticultural production occupations. In addition, 32 percent of all elevated falls in Florida agriculture were from ladders, while 25 percent were from vehicles and other mobile equipment.

Same-level falls were on walking or working surfaces in 76 percent of the incidents.?5 Because many farmworkers are discouraged from reporting their injuries, actual injuries from slips and falls are likely higher than these numbers indicate.

Illustrative of some of these statistics are the following examples: In one example in California, a nectarine picker slipped on a ladder while climbing down, catching his foot and falling and hanging upside. He suffered neck injuries and was still wearing the neck halo three months after the incident and was still not able to return to work.

III. Other Federal Occupational Health and Safety Standards Do Not Address Falls in Agriculture
Federal occupational health and safety standards for general industry do not extend to workers in agricultural production. Under the current fall protection standard, the language specifically excludes agricultural workers. 29 C.F.R. § 1910.22 states, ?This section applies to all permanent places of employment, except where domestic, mining, or agricultural work only is performed.? Fruit ladders are also specifically excluded from the section addressing portable wood ladders (29 C.F.R. § 1910.25 – specifically excluding ?fruitpickers’ ladders?). Furthermore, agricultural health and safety standards do not contain fall protection provisions of any kind.

Despite an opportunity to extend this important standard to agriculture, OSHA fails to do so. OSHA does not address the reason for excluding farmworkers from a protection that is so very integral to their work. In justifying the need for this standard, OSHA refers repeatedly to the BLS Census of Fatal Occupational Injuries ( for the proposition that falls are a common workplace injury. This same Census highlights agriculture, forestry, fishing, and hunting as having the highest ?fatal work injury rate? and indicates that ladders are the second most common cause of fatal falls at 17%. Furthermore, in section V of the proposed rules (?Preliminary Economic and Initial Regulatory Flexibility Screening Analysis?), the injury and fatality data in tables V-7, 8 and 9 (pages 28989 -28994), clearly implicates agriculture, with risks very high compared to other regulated industries. Despite relying on BLS statistics for information about falls and fatalities, OSHA does not address its failure to include agriculture despite the clear importance of this standard in preventing agricultural injuries.

IV. California Occupational Health and Safety Standards Address Falls in Agriculture

In contrast, recognizing the importance of fall protection to farmworkers, California does cover agricultural workers under General Industry Safety Orders relating to fall protection, including ladder safety (T8CCR3276), control of slipping and tripping hazards in working areas (T8CCR3273) and Guarding of Floor openings, holes and roofs (T8CCR3212). In addition, proposed revisions to California fixed and portable ladder safety regulations (Title 8 CCR sections 3276, 3277, 3278, 3287 and 3413) include all types of ladders, including special purpose orchard or fruitpickers’ ladders and include ladder use in all industries.

In California date palm workers or palmeros are covered under separate fall protection regulations (Title 8 CCR 3458 and 3458.1). Date palm workers typically work in the palms at heights of up to 50 feet. For much of this work, palmeros must climb up off of a ladder into the top or crown of the palm and move around the crown of the palm tree performing tasks such as removing thorns, and pollinating, bagging, tying down and harvesting date bunches.

Performing this work without fall protection puts workers at risk of death and disabling injury. One OSHA accident report describes how a date palm worker who was performing pollination work in the crown of the palm fell 35 feet to the ground when the fronds he was standing on broke. He was hospitalized with a broken hip.

V. Request for Public Hearing

We request a public hearing to further examine the issue of exclusion of agricultural establishments from this standard. OSHA has already announced that it plans to hold such hearing, but did not include the notice of hearing in the formal NPRM. Accordingly, under section 6.b.3 of the OSH Act, we request that OSHA hold such a hearing. We will present additional evidence at the forthcoming hearing detailing our opposition to excluding agricultural workers from this proposal.

Thank you for your consideration of these comments.

California Rural Legal Assistance Foundation
Farmworker Justice