AGRICULTURAL PERSONNEL MANAGEMENT

NEWSLETTER

Cal/EPA's Department of Pesticide Regulation recently issued a policy letter (ENF 95-005) on "enforcement discretion for worker safety violations committed by employees." Agricultural commissioners were given guidance on violations by an agricultural (or nonagricultural) employer of a pesticide worker safety regulation due to an employee's not wearing PPE required by regulations or labels.

If a commissioner takes action against an employer when an employee doesn't wear employer-provided PPE, (s)he may take a "compliance action" (no penalty) instead of an "enforcement action." This discretion is allowed only if the employer: (1) maintains a written hazard communication program and has provided employee training as required by regulations and the program; (2) has provided and maintained required PPE which was available at the work site when the employee was handling the pesticide(s); (3) maintains a safe workplace and knows safe use requirements specified in regulations and labeling; (4) has less than 3 worker safety violations in the commissioner's county in the past 2 years; and (5) "has established and follows a written company policy that requires the employer to take disciplinary action against employees who violate company policy, and State, Federal or local pesticide laws and regulations AND the employer has taken disciplinary action against the employee in accordance with the policy."

Commissioners may also use discretion in initiating enforcement action against the employee (and/or employer) if, despite an employer's compliance with all other regulations, an employee fails to wear required PPE. When labeling requires PPE, and the employee does not wear it, commissioners may take enforcement action against the employee as a "user," citing Food and Agriculture Code Section 12973 (using a pesticide in conflict with labeling), instead of against the employer for violating worker safety rules.

Fines for serious violations causing actual injuries could range from $400 to $1,000. Fines for moderate violations posing a reasonable possibility of health effects but no actual injury -- no harm, no foul -- could range from $150 to $400. Some employers may wish to communicate this to handler employees in annual refresher safety training.

The Department advised commissioners that, although enforcement action against an employee failing to wear required PPE is an option, it is important to remember that employers always have responsibility to supervise and train pesticide-handling employees and provide them with required PPE.

Immigration Form I-551 is the current green card. Several versions have been issued since the form came into use in 1977. The newest Form I-551 variant was introduced for persons admitted to permanent residence after August 1, 1989. These I-551 cards have a pink coloration on the front -- and also bear an expiration date on the front bottom.

Employers should note the expiration date of these cards in Section 2 of employment eligibility verification Form I-9, but the employer does not need to reverify the employee's work authorization. The INS has stated that reverification is not required for permanent residents who present Form I-551 during the I-9 procedure, even when Form I-551 contains an expiration date.

Inspection of immigration bills introduced in 1995 to date indicates possible shock to California's labor-intensive agriculture, unless the industry can influence Congress. For example, proposals include a program under which employers, by toll-free telephone, would be required to transmit the social security number and name of newly hired employees for instantaneous notification "that there is or is not a discrepancy concerning the information." Other bills would limit legal immigration, deport aliens caught illegally crossing the border more than twice to locations over 300 miles past the border, require new alien identification and social security cards, bolster the Border Patrol, require border crossing fees, and restrict federal assistance to unauthorized workers -- and to local governments not cooperating with INS.

Employers would help enforce child support collection under proposed welfare reform (H.R. 1214). The Congressional House Ways and Means Committee accepted a rule requiring each state to organize a directory of new hires by October 1997. Employers would be required to furnish state employment agencies with new hires' names, birth dates, and social security numbers. A penalty of $25 per unreported employee would be charged if information is not received within 15 days after the latest of hire date, the first payroll cycle, or electronic entry for the employee. The provision, with bipartisan support, is intended to improve child support collection by providing a tool to track parents behind on payments.

USDA estimates of annual expenditures for agricultural pesticides in California rose steadily from $543 million in 1989 to $756 million in 1993. Pesticide Use Report data show that of 161 million pounds of pesticide active ingredients reported used in the state in 1991, 140 million pounds were used in agriculture. The balance was used in post-harvest treatments, structural fumigations, landscape maintenance, and other business and government applications.

Reported occupational injury and illnesses associated with exposure to pesticides in all California industries, 1990-92, sorted by work activity and illness/injury type, are shown in the table. Chlorine bleach is consistently a "pesticide" reported in nonagricultural injuries.

Based on reported cases, exposure to pesticides involving field residues is very low relative to handling activities (mixing, loading, application, flagging, repair of pesticide equipment). The number of systemic illnesses (nausea, headache, respiratory) is significant, though, in the case of drift. Over the 3-year period, 42 percent of illnesses "definitely," "probably," or "possibly" related to drift exposure occurred in agricultural applications.

My Cal/EPA "accepted" 3-page English/Spanish Pesticide Safety Guide For Agricultural Workers" has been revised slightly by the Monterey County Agricultural Commissioner (1/9/95) for use as an EPA Worker Protection Standard (WPS) compliance tool. For both English and Spanish printed copies of the guide, send $1.50, payable to "County of Fresno" to APMP, 1720 S. Maple Ave., Fresno, CA 93702. Add $3 for the English/Spanish scripts recorded on audio cassette.

Cal/OSHA expects agricultural employers to evaluate and control heat stress, and conduct employee training if needed. For a 2-page English/Spanish tail-gate "Guide to Fieldworker Heat Stress," send $1.50, payable to "County of Fresno" to APMP, at the same address.

Pesticide applicators are forbidden by law from applying a pesticide in a way that will expose fieldworkers or others to drift. Applicators must consider wind speed in judging the likelihood of harm, and should stop application if there is a danger of exposing fieldworkers, or others not involved in the application, to drift.

Normally, winds under 5 miles per hour help disperse pesticides in trees and leafy plants. Stronger winds, though, increase potential drift. In California, certain liquid herbicides generally cannot be applied when wind speed exceeds 10 miles per hour. Employers should instruct applicators to stop application, regardless of wind speed, if fieldworkers or others approach the application site, until they move beyond possible exposure range.

In California, 16,652 individuals were certified as commercial pesticide applicators in 1994. Of these, 4,105 were applicator business operators holding Qualified Applicator Licenses (QALs), and 12,447, generally supervisory employees, held Qualified Applicator Certificates (QACs).

The Pesticide Applicators Professional Association (PAPA), a California nonprofit benefit corporation with nearly 6,000 members, provides continuing education units (CEUs) for agricultural and other pesticide applicators on effective and safe pest control methods. PAPA, in cooperation with UC Cooperative Extension, agricultural commissioners, municipal agencies, and industry, sponsors scores of seminars on safety, regulations, technology, and research for pest management and safety professionals.

PAPA provides a first-rate quarterly newsletter, periodic accounting of required continuing education units (CEUs) for certified commercial applicator members, and communication of concerns to regulatory agencies and other organizations. Workers' compensation loss control specialists, UC Farm Advisors, and UC Davis IPM train-the-trainer graduates may wish to consider joining PAPA. You'll "bump elbows" with real pesticide applicators and learn about pest control and pesticide safety. My PAPA association takes me across California. My next PAPA talks are in Santa Maria (June 14, 1995) and Eureka (June 22, 1995). Annual dues are $27. For information, contact PAPA, P.O. Box 80095, Salinas, CA 93912-0095. (408) 442-3536.   -- S.R.S. PAPA Board Member