By Andrew J. Sommer and Lindsay A. DiSalvo
With the harvest upon us in California wine country, now is a great time to remind wineries and vineyards operating within the Golden Gate of those Cal/OSHA standards most often cited against this industry. The California Division of Occupational Safety and Health (Cal/OSHA), which is charged with enforcing the state’s workplace safety standards, frequently cites wine industry businesses for failing to comply with several California-unique standards, such as the heat illness prevention rule and chemical right-to-know hazard communication requirements, as well as failing to comply with confined space and respiratory protection standards. We highlight these key Cal/OSHA standards and their impact on the wine industry.
Vineyards Vexed by Heat Illness Prevention Standard
California has adopted a Heat Illness Prevention Standard (§3395), which initially in 2005 was an emergency regulation. DOSH considers enforcement of the heat illness prevention standard to be a “special emphasis” and, as such, during every compliance inspection involving work sites that may be subject to this requirement, Cal/OSHA inspectors are expected to inquire about and evaluate employers’ Heat Illness Prevention Plan. This is an area of particular scrutiny in the wine industry, where vineyard employees frequently work outdoors, often in high heat conditions.
The Heat Illness Prevention Standard applies to all outdoor places of employment. There has been some confusion among Cal/OSHA inspectors as to when work is “outdoor” work. In a recent precedential decision, the California Occupational Safety and Health Appeals Board ruled that an employer’s Injury and Illness Prevention Program was deficient because it failed to provide adequate training to employees and supervisors on the hazard of indoor heat illness, from working in an enclosed warehouse.
Under this standard, California employers are required to take the following steps to prevent heat illness for employees working outdoors:
When the weather is hot and employees are likely to be perspiring, employers must “encourage” employees to frequently drink small quantities of water. If drinking water is not continuously available, an employer must provide at least one quart of water per employee per hour of the shift. The water must be provided at the beginning of the shift, unless the employer maintains effective procedures for replenishing water such that employees can drink at least one quart of water per hour.
When the outdoor temperature in the work area exceeds 80° F, the employer shall maintain one or more areas with shade at all times while employees are present. Those shade area must be either open to the air or provided with ventilation or cooling. The amount of shade present shall be at least enough to accommodate the number of employees on recovery or rest periods, so that they can sit in a normal posture fully in the shade without having to be in physical contact with each other. The shade shall be located as close as practical to the areas where employees are working.
Employees must be allowed and encouraged to take a preventive cool-down rest in the shade when they feel the need to do so to protect themselves from overheating. A recovery period must be counted as “hours worked,” for which there shall be no deduction from wages.
California has adopted high-heat procedures for agricultural employers, among other high risk industries. These employers are required to implement high-heat procedures when the temperature is at or above 95°. For example, in addition to the general cool-down rest periods discussed above, agricultural employers must ensure that employees take a minimum ten-minute preventive cool-down rest period every two hours when temperatures reach or exceed 95°. All employers in these high-heat circumstances must also ensure there is effective communication between employees and supervisors, and that employees are regularly observed for alertness and symptoms of heat illness, among other requirements.
Requirements under the Hazard Communication Standard
Cal/OSHA’s Hazard Communication Standard (§5194) requires wineries and vineyards to inform employees about hazardous chemicals to which they may be exposed in the course of operations under normal working conditions or foreseeable emergency situations. Cal/OSHA’s HazCom standard defines a “hazardous chemical” as any chemical “classified as a physical or health hazard, a simple asphyxiant, combustible dust, pyrophoric gas,” and any chemical included in Cal/OSHA’s list of hazardous substances.Employees may be exposed to such chemicals in several aspects of the winemaking process, including while spraying grape vines with pesticides, facilitating the fermentation and filtration process, or otherwise cleaning and maintaining winemaking and storage equipment with caustic cleaners.
Cal/OSHA often cites employers across all industries for failing to maintain a written Hazard Communication Program, for using improper labels on containers of chemicals, and for not providing the required information and training to employees. The wine industry has not been spared from that scrutiny. The Hazard Communication Standard requires employers to maintain a written Hazard Communication Program that explains how container labeling, safety data sheets, and training requirements will be met, as well as listing the chemicals known to be present at the winery, and specifying methods to inform employees (and contractors) of the hazards associated with non-routine tasks.
As a result, wineries and vineyards must maintain compliant and legible labels/written warnings on all chemical containers, conveying the information about the chemical as established in this standard. Additionally, they must conduct training that reviews the hazards of chemicals in the work area and operations to which employees may be exposed, how to detect a hazardous chemical, the requirements of the standard, and the location and availability of the written program. It is also important that employees be provided ready access to the safety data sheets for any hazardous chemicals present at the worksite.
Required Safeguards for Confined Space Entry
Under §5157 of California’s General Industry Safety Orders, wineries must implement certain policies and safeguards, and conduct training if they have employees who will work within or around permit-required confined spaces. Permit-required confined spaces are those confined spaces that present dangers to employees, such as a hazardous atmosphere.
Generally, Cal/OSHA takes the position that wineries must implement permit-required confined space programs for entries into tanks, vats, vessels, and presses used in the vinification process because of the potential for atmospheric hazards inside the vessels; e.g., low oxygen or high carbon dioxide levels. Therefore, entry into these types of equipment for purposes of cleaning, emptying, maintenance, or evaluating the fermentation process, generally triggers the requirements of this standard. Note that entry occurs when any part of the body, including just an individual’s head or hand, breaks the plane of the opening into the confined space.
California wineries have been cited frequently under Section 5157(d) for failure to develop or implement a permit-required confined space program. Wineries with permit-required confined spaces must have a written confined space program that addresses who can enter permit spaces, the hazards to which employees may be exposed, and how these spaces can be entered safely. Importantly, this standard requires a permit for entry and that permit procedure must be addressed in the written program.
The entry permit is used to evaluate the conditions of the space prior to entry, including conducting required air monitoring of the tank, vessel, vat or press to determine whether a hazardous atmosphere is present. Although a space may be ventilated prior to entry, for instance, through the use of fans, monitoring must still be conducted to assess the atmospheric conditions. This standard also mandates training for employees who work both in and around these spaces, including safe entry methods and rescue procedures. This training should be documented, and the training materials and sign-in sheets maintained by the winery.
Respiratory Protection Standard for Certain Workplace Exposure
If winery employees must make entry into tanks, vessels, vats, or presses where an atmospheric hazard has been detected, or otherwise perform work tasks that may expose them to a respiratory hazard (e.g., applying crop assistance chemicals), respiratory protection may be required. Under §5144, California mandates that employers provide respirators:
“when such equipment is necessary to protect the health of the employee.”
At wineries, respirators may be required to safely enter a permit-required confined space, depending on the air monitoring results, application of pesticides or chemicals used in the winemaking process, or in the performance of any other activity that may expose employees to respirable dusts, fumes or gases. To determine whether employees should be equipped with and required to wear respirators in the performance of certain tasks, an industrial hygiene survey should be completed. Based on the results, a winery can determine whether respirators must be used and what type of respirator is appropriate.
Similar to the permit-required confined space standard, wineries are often cited under this standard for failing to develop a written respiratory protection program. Cal/OSHA requires that the program specify:
Importantly, all employees who must or may be allowed to use respirators in the performance of their duties must receive medical evaluations to ensure they are medically able to use a respirator. Additionally, wineries are required to perform fit-testing with affected employees to make certain the respirators are effective and employees know how to don them. The program must also outline procedures that can be used to regularly evaluate the effectiveness of the respiratory protection program. Again, the program itself, as well as mandatory evaluations and training, should all be documented to evidence that the program meets Cal/OSHA’s requirements.
Important Takeaways for the Wine Industry
DOSH inspectors frequently focus on these Cal/OSHA standards in inspecting wineries and vineyards, and these standards often surface in citations issued to winemakers, which can be accompanied by substantial penalty assessments, and worse, result in costly “Repeat” violations if they are not addressed appropriately. Consequently, we cannot emphasize enough the importance of developing and implementing robust workplace safety programs, particularly around these commonly cited standards affecting the wine industry. In addition, employers should be prepared with a plan of action in the event of a surprise inspection by DOSH, which is usually triggered by the agency’s receipt of an employee complaint or notice of a workplace injury. Check out Conn Maciel Carey’s OSHA Inspection Checklist, which was developed to help employers navigate the OSHA inspection process.
Conn Maciel Carey has a specialty practice focused exclusively on workplace safety and health legal issues, with attorneys who have extensive, hands-on experience in all aspects of federal OSHA and Cal/OSHA law, and who can provide the full range of occupational safety and health law services.