She should have had a mask. It was harvest time during the worst wildfire season in California’s history, but Margarita Garcia was left with only a bandana to protect her from inhaling pollution as smoke stung her eyes last summer.
"The job is heavy, and we work fast," Garcia recalled. "It was difficult to breathe, to concentrate. But I didn’t have anything for the smoke."
One year earlier, the Golden State had established first-in-the-nation emergency regulations requiring employers to protect employees from wildfire smoke by giving them N95 respirators.
But then came 2020, and with it the pandemic, medical supply shortages and megafires. Hundreds of thousands of laborers like Garcia were left to harvest crops without protection as the skies above them turned orange with pollution.
Respirator shortages were the most visible failure in California’s efforts to protect workers from wildfires as a pandemic raged last summer. The simultaneous catastrophes, critics say, also exacerbated weaknesses at California’s resource-strapped Division of Occupational Safety and Health, known as Cal/OSHA, and left already-vulnerable workers exposed to more smoke than ever before.
Those experiences may be instructive for the Biden administration, which recently nominated Cal/OSHA Chief Doug Parker to lead the federal Occupational Health and Safety Administration. If confirmed, he will be under immediate pressure to write emergency regulations protecting workers nationwide from infectious diseases, as well as environmental hazards like heat.
"Poor Doug Parker is going from the frying pan into the fire," said Garrett Brown, a former Cal/OSHA compliance officer.
Disruption and chaos: ‘Nobody was ready’
California’s 800,000 farmworkers are already considered extremely vulnerable to workplace hazards. Working seasonal jobs and often paid by how much fruit or vegetables they can pick, a farmworker’s annual income averages just $18,000. An estimated 60% of workers are undocumented immigrants, with many others working in the country on visas sponsored by their employers. That makes them less willing or able to report labor law violations when they occur.
"Anytime you have an extreme event, be it COVID-19 or wildfires, the essential worker experience becomes exacerbated because they are working paycheck to paycheck and know they need to show up if they want a job, even if the air quality is really bad," said Heather Riden, who directs the University of California, Davis’ Agriculture Health and Safety Program.
The arduous nature of their work also makes outdoor laborers more susceptible to polluted air. The physical exertion necessary for the harvest means farmworkers must inhale frequently to get the oxygen their bodies require. When wildfires blaze, farmworkers are also breathing in more particulate matter pollution, which can reduce lung function, worsen preexisting lung and heart diseases, and cause difficulty breathing.
That’s why in late summer 2019, Cal/OSHA established emergency standards to limit outdoor workers’ exposure to wildfire smoke. The action, finalized just two months before Parker took the helm of the agency, was spurred by a petition he had written as then-director of Worksafe, along with two other labor advocacy groups.
The rules require employers to provide workers with N95 respirators when the Air Quality Index for particulate matter reaches 151 — a level that EPA says is "unhealthy" for the general population and that California air regulators say is regularly exceeded within a blaze’s 50-mile radius. Workers would only actually have to wear the masks once pollution levels exceeded 500, the highest measurement on the AQI.
Summer 2020 was the first full wildfire season in which the rule would be in effect. But implementing its basic tenets became nearly impossible, due to the coronavirus.
Fresno County Farm Bureau CEO Ryan Jacobsen said growers in his area had already begun stockpiling N95 masks to comply with the new rule when the pandemic hit. Suddenly, health care workers were begging for more personal protective equipment as hospitals became overwhelmed with infected patients. Then-Vice President Mike Pence even told construction workers to donate N95 respirators they weren’t using to help protect medical workers from the virus.
Jacobsen gave his masks to the local hospital, he said, as did other farm owners, unaware that the supply shortages would persist through months of drought and into August, when a midmonth lightning storm sparked thousands of wildfires statewide.
An individual laborer might need eight to 10 respirators in a single shift when the AQI is more than 151 and smoke clogs the disposable filters. But the N95 respirators required by regulation were impossible to find when the smoke arrived, Jacobsen said.
"Come late summer, we flipped to the opposite side where we had a significant shortage of masks for our agriculture community getting through our own crisis with the fires," he said.
Farmworkers, already suffering higher rates of coronavirus infection than the general population, had little to no protection from pollution that could leave them even more susceptible to respiratory illness. One poll, from United Farm Workers, found 84% of agricultural workers had not been given N95 masks by Aug. 20, 2020.
Hernan Hernandez, executive director of the California Farmworker Foundation, said it was "insane" how few N95 masks were available to workers.
"It was disruption, it was chaos, nobody was ready," Hernandez said. "There were wildfires in areas we had never seen before, and the No. 1 group that suffered the most was the farmworkers, because of COVID-19."
Cal/OSHA responded by issuing a reminder to employers that they were required to "protect workers from unhealthy air due to wildfire smoke." But one month later, Parker was still frustrated by the lack of resources on the ground.
"That’s disturbing to me," he told a reporter from Public Radio International’s "The World" who asked about the supply issue. "It’s the employers’ obligation to provide protective equipment to employees. Plain and simple."
The issue became so bad that California’s Office of Emergency Services stepped in, allocating nearly 3.75 million N95 masks to county agriculture commissioners to distribute to workers.
Farm owners blamed Cal/OSHA, saying the agency should have been more understanding of the supply chain issues and given employers more flexibility.
The worst of the fires came at the height of harvest, when stopping work was not an option for many operations. The California Farm Bureau Federation lobbied Cal/OSHA for permission to provide workers with Chinese KN95 masks instead, but the regulator initially said the alternatives were not protective enough because they didn’t create a tight seal around workers’ noses and mouths.
When Cal/OSHA finally allowed N95 alternatives in October, California Farm Bureau Federation Employment Director Bryan Little said it was too late.
"They couldn’t seem to make up their minds on what they wanted or if some protection was better than nothing," he said.
Cal/OSHA Heat and Agriculture Program Director David Hornung, while not speaking directly to those criticisms, told E&E News the agency, too, was facing an unprecedented situation.
"Certainly it was a very challenging time to be addressing all of these hazards to the workforce," Hornung said. "It was one additional hardship after another for workers, who had been dealing with heat for a long time, and then we had the intensity of the wildfires and then the pandemic representing a whole new hazard with people trying to figure out how it spread and how to protect workers."
‘We are failing’
Even as many labor advocates acknowledge Cal/OSHA could not have predicted the persistent respirator shortages, they argue workers would have been better protected if the agency had listened to other concerns before the 2020 wildfire season began.
Anne Katten, of the California Rural Legal Assistance Foundation, said she felt uneasy about rules allowing workers to be exposed to wildfire pollution at levels at which the general public would be advised to stay inside and avoid physical exertion.
"There needed to be a provision that if the workers don’t feel comfortable going out in the smoke, they can take time off without losing their jobs," Katten said.
Advocates also wanted Cal/OSHA to protect crews of laborers sent to harvest crops in areas where fire officials ordered mandatory evacuations. The practice has become widespread in the northern part of the state, with the Sonoma County agriculture commissioner alone allowing 300 employers to bring an undisclosed number of workers into evacuation zones during the 2020 fires.
Cal/OSHA issued four citations against employers for bringing workers to evacuated areas during the 2019 wildfire season but none during 2020. The wildfire regulation doesn’t address the practice.
"These are zones that, by definition, are hazardous, but migrant workers are being asked to risk their lives," said Michael Méndez, a professor at the University of California, Irvine.
Overall, Cal/OSHA conducted 12 on-site inspections in response to 66 "valid complaints related to wildfire smoke" during the 2020 season. Five citations were issued.
Those statistics, advocates say, underscore just how understaffed Cal/OSHA is and how unprepared it was for simultaneous threats to workers.
"We live in a state where it looks like we have a gold standard for labor laws and protections and we are always trying to better the environment of workers in this state," Hernandez said. "But when it comes down to it, are these things effective? Are they doing what they are supposed to do? That’s where we are failing."
Cal/OSHA has just 26 bilingual compliance safety and health officials on staff, 24 of whom speak Spanish. None speaks Mexican Indigenous languages common among farmworkers like Mixtec, Triqui, Chatino or Maya.
Even before the pandemic, Hernandez said, farmworkers had trouble filing complaints about unsafe workplaces with the agency.
"You call the hotline, you are redirected, often no one speaks your language, so you hang up," he said. "The system in place right now does not work."
COVID-19 only exacerbated the situation, said Brown, the former Cal/OSHA compliance officer who now runs a website tracking agency staffing.
When the pandemic began, Cal/OSHA had a 22% vacancy rate among its enforcement staff. The empty posts were already putting a strain on the agency’s ability to respond to complaints with in-person inspections when coronavirus-related complaints exploded.
"All of a sudden, between March and September, you have 9,000 new complaints for an inspectorate that is 190 people, and you also have to track every hospitalization or death from the virus that may have originated at a workplace," he said. "I’m sure the workers who were complaining about other issues like smoke or heat are very unhappy because they feel nothing happens to the complaints they put in."
Cal/OSHA’s Hornung acknowledged that. "COVID had a huge impact on our agency," he said, "and it took a lot of resources to address the public health crisis."
"We might have had a slightly different rollout of the wildfire regulation, or more capacity to address complaints with some on-site inspections, had we not had the pandemic," he said.
‘A win-win for the workers’?
For his part, Parker has broadly acknowledged the challenges of leading a resource-strapped agency through a public health crisis.
Speaking on an employment law podcast this January, before he was nominated to a federal post, Parker discussed the hurdles of writing infectious disease standards for health care and congregate housing settings without enough health experts on staff.
Parker said he had plans to beef up Cal/OSHA’s workforce when he took its helm, but the pandemic is "dominating my time these days."
"We don’t have a lot of industrial hygienists on our team," he said. "We’ve got a lot of good rules on the book about health standards, but we don’t really have enough inspectors who can go out and do things to enforce them."
The state budget is attempting to address the issue by funding 70 additional Cal/OSHA positions, 42 of which would be for industrial hygienists. But the money for new hires is contingent on Cal/OSHA filling all its currently vacant slots before the new fiscal year begins in July, and it’s not clear whether the agency can make that deadline.
Little, at the California Farm Bureau Federation, said although he appreciated that Parker "spent a lot of time and energy listening to us" during the wildfires, "Cal/OSHA had a lot of problems when Doug Parker got there, and they still have a lot of problems with personnel."
If confirmed to lead the federal OSHA, Parker will encounter many of those same obstacles of low staffing and morale. There, he will once again be tasked with writing emergency standards to protect workers from infectious diseases, and he’ll also be under pressure from environmental groups that have petitioned the federal government to establish standards protecting workers from excessive heat (Greenwire, Jan. 22). The issue is likely to be important to the Biden administration, with Vice President Kamala Harris supporting such regulations during her time in the Senate.
"Running OSHA is always challenging given the large number of hazards and the fact that it is so underresourced," said David Michaels, who led the agency during the Obama administration and now teaches at George Washington University. "Doug will face the immediate crisis of COVID, but also the very significant challenges of issuing standards for heat and chemical exposures."
He said he believes Parker’s "deep commitment to worker safety" will help him succeed.
Hernandez, who has been critical of Cal/OSHA before and after Parker joined, said having someone from California leading the federal government’s labor watchdog could only be an improvement for workers nationwide.
"If someone came from California to head the federal department, even though we have our shortcomings, I do think that would be a win-win for the workers," he said. "I’d rather have someone from California than from Texas."