II 117th CONGRESS 1st Session S. 2751 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. Short title This Act may be cited as the Farmworker Smoke and Excessive Heat Protection Act of 2021 . 2. Findings Congress finds that, as of the date of enactment of this Act— (1) the wildfire season has increased by over 2 months since the 1970s, and wildfires have become increasingly prevalent across the United States due to prolonged droughts and extreme temperatures; (2) the average annual temperatures in the western United States have increased by 1.9 degrees Fahrenheit since 1970; (3) wildfire smoke often contains toxic chemicals and particulates, creating hazardous air quality conditions; (4) wildfire smoke often persists for extended periods of time and can travel hundreds of miles; (5) wildfire smoke inhalation is harmful to human health, particularly for vulnerable populations, including outdoor workers; (6) excessive heat poses a potentially deadly threat to those without protection from the heat, including outdoor workers; and (7) more than 100 people died during the June 2021 heat wave in Oregon, including a farmworker. 3. Occupational safety and health standard to protect farmworkers from wildfire smoke and excessive heat (a) Definitions In this section: (1) Agricultural operation employer The term agricultural operation employer means an employer, as defined in section 3 of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 652 ), engaged in farming or agricultural operation. (2) Excessive heat The term excessive heat includes outdoor or indoor exposure to heat at a level that exceeds the capacities of the body to maintain normal body functions and may cause heat-related injury, illness, or fatality (including heat stroke, heat exhaustion, heat syncope, heat cramps, or heat rashes). (3) Farmworker The term farmworker means an employee, as defined in section 3 of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 652 ), engaged in farming or other agricultural work for an agricultural operation employer. (4) Secretary The term Secretary means the Secretary of Labor. (b) Initial occupational safety and health standard (1) In general During the period beginning on the date of enactment of this Act and ending on the date of the promulgation of the occupational safety and health standard under subsection (c), the Secretary shall deem the initial standard to protect farmworkers from wildfire smoke and excessive heat described in paragraph (2) to be an occupational safety and health standard under section 6 of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 655 ). (2) Contents of initial standard The initial standard described in this subsection shall require that an agricultural operation employer— (A) provide farmworkers with appropriate equipment to protect from wildfire smoke when air quality at the workplace reaches a level determined by the Secretary to be dangerous to human health; (B) ensure that the equipment provided under subparagraph (A) includes a N95 respirator or N100 respirator or other equipment certified by the National Institute for Occupational Safety and Health to protect from wildfire smoke exposure; (C) require mandatory use of the equipment described in subparagraphs (A) and (B) when air quality at the workplace reaches an extremely dangerous level, as determined by the Secretary; (D) provide farmworkers with appropriate equipment to protect from excessive heat when the heat reaches a level determined by the Secretary to be dangerous to health; (E) ensure that the equipment provided under subparagraph (D) includes water and cooling facilities to protect from excessive heat; (F) require mandatory use of the equipment described in subparagraphs (D) and (E) when the excessive heat reaches an extremely dangerous level, as determined by the Secretary; and (G) provide, with protective equipment provided under any of subparagraphs (A) through (F)— (i) training and education materials to farmworkers, in a language understood by the farmworkers, regarding— (I) how to properly use the protective equipment; (II) how long and under what conditions the protective equipment is effective; and (III) the potential health impacts of breathing wildfire smoke without proper protection or the signs of heat illness, as applicable; and (ii) an opportunity for the farmworkers to ask questions and receive responses regarding the training and education materials described in clause (i); and (H) require that, once the air quality or heat level has reached a dangerous or extremely dangerous level, as determined by the Secretary under subparagraph (A), (C), (D), or (F), farmworkers be provided mandatory rest breaks— (i) of at least 10 minutes every 2 hours; and (ii) in shaded areas where the exposure to smoke is decreased or the temperature is decreased, as applicable. (3) Enforcement The initial standard described in this subsection shall be enforced in the same manner as a standard promulgated under section 6 of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 655 ), including the prohibition on discrimination under section 11(c) of such Act ( 29 U.S.C. 660(c) ). (c) Occupational safety and health standard (1) In general By not later than 90 days after the date of enactment of this Act, the Secretary shall begin promulgating an occupational safety and health standard under section 6 of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 655 ) to protect farmworkers from wildfire smoke and excessive heat. (2) Requirements The standard promulgated under paragraph (1) shall— (A) provide safety and health protections for farmworkers working for agricultural operation employers that provide at least the same level of health and safety protection as the requirements under subsection (b)(2); (B) provide no less protection than the most protective smoke or heat protection standard adopted by a State; (C) detail the potential health impacts of breathing wildfire smoke without proper protection; and (D) detail the potential health impacts of working in excessive heat without proper protection. (d) Collaboration and technical assistance (1) In general An agricultural operation employer may seek advice or assistance from the Secretary of Labor or a State or local health department regarding the equipment and training and education materials needed to meet the requirements under subsection (b)(2) (or any similar requirement of a standard promulgated under subsection (c)). (2) Department of Labor duties (A) In general The Secretary shall— (i) provide technical assistance, upon the request of an agricultural operation employer, regarding how to meet the employer requirements of this section; and (ii) develop sample training and education materials that may be used by agricultural operation employers to meet the requirements of subsection (b)(2)(G) (or any similar requirement of a standard promulgated under subsection (c)). (B) Collaboration In developing training and education materials under subparagraph (A), the Secretary shall— (i) work with community organizations for hard-to-reach farmworkers due to geographic isolation, language barriers, or literacy issues; and (ii) seek input in the development of the training and education materials in alternative languages, including indigenous languages. (3) Collaboration with community organizations The Secretary may, upon request, provide the training and educational materials developed under paragraph (2)(B) to relevant community and nonprofit organizations.