A Senate Bill that would create a presumption for agriculture workers has passed through the Senate and is now before the Assembly. SB 1299 seeks to add Section 3212.81 to the Labor Code, which would establish a presumption that certain heat-related illnesses arose out of and in the course of employment.

The legislature declared the purpose of the act is “to prevent increasing farmworker heat-related injury, illness, and death, as climate change raises temperatures.” The proposal comes shortly after seeing a 130% increase in the number of suspected and confirmed farmworker heat-related deaths from 2018 to 2019. The legislature intends for the act to motivate “all agricultural employers consider the climate change heat-related needs of farmworkers and do whatever is necessary to prevent injury, illness, and death, consistent with existing laws and regulations.” The proposal does not seek to change any existing heat-related regulation.” (California Legislative Information, Senate Bill 1299 – Farmworkers: Benefits, Amended Senate Version dated March 21, 2024, Read the current version of SB 1299 here.

The current version of the law before the Assembly provides:

“3212.81. (a) If an employer, as defined in Section 3300 and in the agriculture industry listed and covered in Section 3395 of Title 8 of the California Code of Regulations, fails to comply with the heat illness prevention standards set forth in Section 6721 and in Section 3395 of Title 8 of the California Code of Regulations, any resulting heat-related injury to the employee shall be presumed to arise out of and in the course of employment. (Labor Code § 6721).

This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board shall find in accordance with it. Heat illness prevention standards include, but are not limited to, the following:

• Establishing, implementing, and maintaining an effective Heat Illness Prevention Plan and making it available at the worksite in English and the language understood by a majority of employees and providing effective heat illness prevention.
• Recognition and response training as required by Section 3395 of Title 8 of the California Code of Regulations. ( 3395 – Heat Illness Prevention in Outdoor Places of Employment).
• Providing access to shade and water and a cooldown rest period as required by Section 3395 of Title 8 of the California Code of Regulations.

(b) “Injury” as used in this section includes any heat-related injury, illness, or death that develops or manifests after the employee was working outdoors during or within the pay period in which an employee suffers any heat-related illness, injury, or death.

(c) The compensation that is awarded for injury pursuant to this section shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.”

What does this mean for employers?

The proposed law is considered somewhat of a pioneer, as it would create a rebuttable presumption of compensability typically only seen for first responders. For employers, the law would result in the presumption of compensability for an outdoor, heat-related injury if the employer was not in compliance with the heat illness prevention standards. Here in the Central Valley, which the Legislature cited as reaching a recorded all-time high of 114 degrees in 2022, the repercussions of the law could be costly for employers. In general, it is important to ensure your facilities are in compliance with the heat illness prevention standards, including implementing or updating your Heat Illness Prevention Plan.

Duncan Cassio proudly represents many of the leading agricultural businesses in the Central Valley and beyond. Please do not hesitate to contact our office if you have any questions regarding the status of SB-1299 or any of the complex workers’ compensation issues surrounding ag labor.