The North Bay’s latest batch of wildfires comes as a perfect storm for the region’s agricultural industry and its workers, raising renewed concerns that some workers, already at risk of catching Covid-19, are being put in harm’s way by being allowed to work in evacuation zones.
Sonoma County’s grape harvest officially started in the first week of August this year. Just a few weeks later, wildfires caused by lightning storms threatened to interrupt the harvest and other local agriculture work.
By Tuesday, Aug. 25, the LNU Lightning Complex fire had engulfed 352,913 acres. The Walbridge fire, located west of Windsor and Healdsburg, sat at 54,503 acres, causing emergency officials to evacuate thousands of residents. But, in an effort to safeguard local agricultural products, the County also began allowing some employers and their workers to reenter evacuation zones to complete agricultural work deemed critical.
During the October 2017 wildfires, the County allowed 280 groups to complete agricultural work in evacuation zones, according to a December 2019 Sonoma County Farm Bureau newsletter written by the County’s former Agriculture commissioner Tony Linegar. The County’s new Agriculture commissioner, Andrew Smith, told the Bohemian on Monday, Aug. 24, that he had allowed 268 employers permission to access evacuation zones during the first week of fires.
Although the permission slips issued by the County have been called “permits” in previous press coverage, Smith says that his department simply verifies that an employer has legitimate and necessary agricultural business to conduct in the evacuation zone and forwards their information to the Sheriff’s Office, which patrols the evacuation zones. Smith calls his department’s approval document an Access Verification.
But, while they acknowledge that it is necessary to complete some agriculture work during wildfires, labor advocates raised concerns this week that workers may be being compelled to work in dangerous conditions without adequate labor protections as a result of the verification program.
Omar Paz, Jr., an organizer with North Bay Jobs with Justice, fears that workers living in financially precarious conditions which have been worsened by the pandemic, would not be in a position to turn down work in a fire zone even if they felt it was unsafe.
In a letter to local elected officials on Aug. 20, he wrote he had heard from a local worker that “Workers are being told to work in extreme heat, terrible air quality, and ashes in these areas versus focusing on preparing themselves and their families for potential evacuation as it’s been reported that some live in the evacuation zones as well.”
Smith, the Agriculture commissioner, defended local companies’ safety records. “Our Sonoma County ag producers are very responsible with their regulatory obligations,” he said on Monday, Aug. 24.
Access Verification
In order to receive an Access Verification, an employer must sign a brief legal waiver which, essentially, shields the County from legal liability if anything goes wrong while the company is working in an evacuation zone. There may be a problem with one aspect of the agreement, though, according to a local attorney.
In addition to waiving the company owner’s right to sue the County, the agreement also appears to waive certain rights of the company’s employees as well.
“Requester is solely responsible for the safety of those individuals included in this request and is solely responsible for any damage to property or equipment arising from restricted access,” the agreement states in part.
Shown the legal agreement, Kendall Jarvis, an attorney with Legal Aid of Sonoma County, responded in an email: “The question in my mind is: What does it actually mean?”
“Generally, one party can’t sign away another party’s right without their consent,” Jarvis explained. “So, unless employees are voluntarily signing similar agreements, it may mean that the County could still be sued but that they would have the ability to defend against that suit by demonstrating that the employer volunteered to be liable to the plaintiff under certain circumstances.”
In an interview on Monday, Aug. 24, Smith, the Agriculture commissioner, said that only the responsible party—usually the owner or operator of an agricultural business—is required to sign the agreement, not their employees.
Legal Protections
In 2018, the Occupational Safety and Health Standards Board, the state board which creates labor regulations, passed an emergency order requiring employers to offer employees respirators if the Air Quality Index (AQI) exceeds 151 parts per million of fine particulate matter found in wildfire smoke. Under the rule employers must offer workers respirators—graded N-95 or higher—when the AQI exceeds 151.
This year, despite a shortage of N-95 masks due to the pandemic, the state has tried its best to stay ahead of the problem. On Thursday, Aug. 20, the state announced it was distributing approximately 1.3 million N95 masks throughout the fire-affected areas, via county Agriculture commissioners. Smith said that his office distributed many N-95 masks to local employers during the wildfires and continues to do so by request.
Still, enforcing the state’s new wildfire smoke safety regulation seems tricky if some employers are indeed breaking the rules.
As most Bay Area residents have experienced over the past few years, wildfire smoke can concentrate in areas far from the source or change considerably from hour-to-hour based on wind patterns. For example, according to BAAQMD data, air quality conditions were much worse in the East Bay for much of the past week than they were in Sonoma and Napa counties.
While air quality certainly exceeded 150 AQI at certain times in the North Bay, under the letter of the state rule, employers must simply offer workers N-95 masks. If a worker does not accept, the employer has technically fulfilled their duty.
Furthermore, Cal/OSHA, the state’s labor regulator, typically only responds to complaints instead of being on-site. A spokesperson for the agency stated that Cal/OSHA “responds to complaints and referrals of unsafe conditions” and “works proactively to inspect high hazard worksites … and does compliance-assistance visits to correct issues on the spot.” They did not respond when asked if the agency had deployed worksite inspectors during the wildfires.
In the case of the recent wildfires, large swaths of the state burned while agricultural work continued throughout the state. By the time Cal/OSHA is able to investigate all of the complaints about violations of the wildfire smoke rule, the smoke will have long since cleared.
