II 

117TH CONGRESS 

1ST SESSION S. 2751 

To establish an occupational safety and health standard to protect 

farmworkers from wildfire smoke and excessive heat, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 15, 2021 

Mr. MERKLEY introduced the following bill; which was read twice and referred 

to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To establish an occupational safety and health standard to 

protect farmworkers from wildfire smoke and excessive 

heat, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Farmworker Smoke 

5 and Excessive Heat Protection Act of 2021’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds that, as of the date of enactment of 

8 this Act— 

9 (1) the wildfire season has increased by over 2 

10 months since the 1970s, and wildfires have become 


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1 increasingly prevalent across the United States due 

2 to prolonged droughts and extreme temperatures; 

3 (2) the average annual temperatures in the 

4 western United States have increased by 1.9 degrees 

5 Fahrenheit since 1970; 

6 (3) wildfire smoke often contains toxic chemi7 cals and particulates, creating hazardous air quality 

8 conditions; 

9 (4) wildfire smoke often persists for extended 

10 periods of time and can travel hundreds of miles; 

11 (5) wildfire smoke inhalation is harmful to 

12 human health, particularly for vulnerable popu13 lations, including outdoor workers; 

14 (6) excessive heat poses a potentially deadly 

15 threat to those without protection from the heat, in16 cluding outdoor workers; and 

17 (7) more than 100 people died during the June 

18 2021 heat wave in Oregon, including a farmworker. 

19 SEC. 3. OCCUPATIONAL SAFETY AND HEALTH STANDARD 

20 TO PROTECT FARMWORKERS FROM WILD21 FIRE SMOKE AND EXCESSIVE HEAT. 

22 (a) DEFINITIONS.—In this section: 

23 (1) AGRICULTURAL OPERATION EMPLOYER.— 

24 The term ‘‘agricultural operation employer’’ means 

25 an employer, as defined in section 3 of the OccupaVerDate Sep 11 2014 03:48 Sep 17, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2751.IS S2751

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1 tional Safety and Health Act of 1970 (29 U.S.C. 

2 652), engaged in farming or agricultural operation. 

3 (2) EXCESSIVE HEAT.—The term ‘‘excessive 

4 heat’’ includes outdoor or indoor exposure to heat at 

5 a level that exceeds the capacities of the body to 

6 maintain normal body functions and may cause 

7 heat-related injury, illness, or fatality (including 

8 heat stroke, heat exhaustion, heat syncope, heat 

9 cramps, or heat rashes). 

10 (3) FARMWORKER.—The term ‘‘farmworker’’ 

11 means an employee, as defined in section 3 of the 

12 Occupational Safety and Health Act of 1970 (29 

13 U.S.C. 652), engaged in farming or other agricul14 tural work for an agricultural operation employer. 

15 (4) SECRETARY.—The term ‘‘Secretary’’ means 

16 the Secretary of Labor. 

17 (b) INITIAL OCCUPATIONAL SAFETY AND HEALTH

18 STANDARD.— 

19 (1) IN GENERAL.—During the period beginning 

20 on the date of enactment of this Act and ending on 

21 the date of the promulgation of the occupational 

22 safety and health standard under subsection (c), the 

23 Secretary shall deem the initial standard to protect 

24 farmworkers from wildfire smoke and excessive heat 

25 described in paragraph (2) to be an occupational 


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1 safety and health standard under section 6 of the 

2 Occupational Safety and Health Act of 1970 (29 

3 U.S.C. 655). 

4 (2) CONTENTS OF INITIAL STANDARD.—The 

5 initial standard described in this subsection shall re6 quire that an agricultural operation employer— 

7 (A) provide farmworkers with appropriate 

8 equipment to protect from wildfire smoke when 

9 air quality at the workplace reaches a level de10 termined by the Secretary to be dangerous to 

11 human health; 

12 (B) ensure that the equipment provided 

13 under subparagraph (A) includes a N95 res14 pirator or N100 respirator or other equipment 

15 certified by the National Institute for Occupa16 tional Safety and Health to protect from wild17 fire smoke exposure; 

18 (C) require mandatory use of the equip19 ment described in subparagraphs (A) and (B) 

20 when air quality at the workplace reaches an 

21 extremely dangerous level, as determined by the 

22 Secretary; 

23 (D) provide farmworkers with appropriate 

24 equipment to protect from excessive heat when 


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1 the heat reaches a level determined by the Sec2 retary to be dangerous to health; 

3 (E) ensure that the equipment provided 

4 under subparagraph (D) includes water and 

5 cooling facilities to protect from excessive heat; 

6 (F) require mandatory use of the equip7 ment described in subparagraphs (D) and (E) 

8 when the excessive heat reaches an extremely 

9 dangerous level, as determined by the Sec10 retary; and 

11 (G) provide, with protective equipment pro12 vided under any of subparagraphs (A) through 

13 (F)— 

14 (i) training and education materials to 

15 farmworkers, in a language understood by 

16 the farmworkers, regarding— 

17 (I) how to properly use the pro18 tective equipment; 

19 (II) how long and under what 

20 conditions the protective equipment is 

21 effective; and 

22 (III) the potential health impacts 

23 of breathing wildfire smoke without 

24 proper protection or the signs of heat 

25 illness, as applicable; and 


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1 (ii) an opportunity for the farm2 workers to ask questions and receive re3 sponses regarding the training and edu4 cation materials described in clause (i); 

5 and 

6 (H) require that, once the air quality or 

7 heat level has reached a dangerous or extremely 

8 dangerous level, as determined by the Secretary 

9 under subparagraph (A), (C), (D), or (F), 

10 farmworkers be provided mandatory rest 

11 breaks— 

12 (i) of at least 10 minutes every 2 

13 hours; and 

14 (ii) in shaded areas where the expo15 sure to smoke is decreased or the tempera16 ture is decreased, as applicable. 

17 (3) ENFORCEMENT.—The initial standard de18 scribed in this subsection shall be enforced in the 

19 same manner as a standard promulgated under sec20 tion 6 of the Occupational Safety and Health Act of 

21 1970 (29 U.S.C. 655), including the prohibition on 

22 discrimination under section 11(c) of such Act (29 

23 U.S.C. 660(c)). 

24 (c) OCCUPATIONAL SAFETY AND HEALTH STAND25 ARD.— 


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1 (1) IN GENERAL.—By not later than 90 days 

2 after the date of enactment of this Act, the Sec3 retary shall begin promulgating an occupational 

4 safety and health standard under section 6 of the 

5 Occupational Safety and Health Act of 1970 (29 

6 U.S.C. 655) to protect farmworkers from wildfire 

7 smoke and excessive heat. 

8 (2) REQUIREMENTS.—The standard promul9 gated under paragraph (1) shall— 

10 (A) provide safety and health protections 

11 for farmworkers working for agricultural oper12 ation employers that provide at least the same 

13 level of health and safety protection as the re14 quirements under subsection (b)(2); 

15 (B) provide no less protection than the 

16 most protective smoke or heat protection stand17 ard adopted by a State; 

18 (C) detail the potential health impacts of 

19 breathing wildfire smoke without proper protec20 tion; and 

21 (D) detail the potential health impacts of 

22 working in excessive heat without proper pro23 tection. 

24 (d) COLLABORATION AND TECHNICAL ASSIST25 ANCE.— 


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1 (1) IN GENERAL.—An agricultural operation 

2 employer may seek advice or assistance from the 

3 Secretary of Labor or a State or local health depart4 ment regarding the equipment and training and edu5 cation materials needed to meet the requirements 

6 under subsection (b)(2) (or any similar requirement 

7 of a standard promulgated under subsection (c)). 

8 (2) DEPARTMENT OF LABOR DUTIES.— 

9 (A) IN GENERAL.—The Secretary shall— 

10 (i) provide technical assistance, upon 

11 the request of an agricultural operation 

12 employer, regarding how to meet the em13 ployer requirements of this section; and 

14 (ii) develop sample training and edu15 cation materials that may be used by agri16 cultural operation employers to meet the 

17 requirements of subsection (b)(2)(G) (or 

18 any similar requirement of a standard pro19 mulgated under subsection (c)). 

20 (B) COLLABORATION.—In developing 

21 training and education materials under sub22 paragraph (A), the Secretary shall— 

23 (i) work with community organiza24 tions for hard-to-reach farmworkers due to 


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1 geographic isolation, language barriers, or 

2 literacy issues; and 

3 (ii) seek input in the development of 

4 the training and education materials in al5 ternative languages, including indigenous 

6 languages. 

7 (3) COLLABORATION WITH COMMUNITY ORGA8 NIZATIONS.—The Secretary may, upon request, pro9 vide the training and educational materials devel10 oped under paragraph (2)(B) to relevant community 

11 and nonprofit organizations. 

Æ 


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