With temperatures nearing or exceeding 100 in many parts of California, employers must ensure that they are complying with Field Sanitation Standard, 8 CCR Section 3457, by providing “readily accessible” potable water at all times. 

     In March, 2010, a Cal/OSHA Administrative Law Judge in Smith Ranch, docket No. 08-R2D3-1313, 37 Cal/OSHA Reporter 40-6383 issued a decision interpreting the phrase “readily accessible to all employees” as this term refers to employee access to drinking water during working hours.  Specifically, the Field Sanitation Standard requires that agricultural employers provide potable drinking water during working hours and “in locations readily accessible to all employees.  Access to such drinking water shall be permitted at all times.”

     A Division representative credibly testified that there were no water jugs or containers of potable water, or drinking fountains in the orchard where the employees were pruning trees, contrary to the employers’ assertion that his workers filled up their personal jugs at the equipment lot and carried them to the orchard.  The Division estimated that the ranch office where water was available was at least 700 ft. from the end of the orchard.

     The ALJ noted that allowing workers to carry their own water containers was not the same as providing them with water.  The Field Sanitation Standard explicitly requires that the water employers provide “be dispensed in single-use drinking cups or by fountains.”  Furthermore Section 3457(c)(3) requires that employers regularly clean water containers to protect them against contamination and to maintain them in accordance with public health sanitation practices.  According to the ALJ, providing a distant water source, yet failing to provide appropriate dispensing means, was the equivalent of failing to provide drinking water.  According to the ALJ, a potable drinking water location approximately 960 feet from the corner of the orchard was not a location that was “readily accessible” to employees once they began working in the orchard.

COUNSEL TO MANAGEMENT:  The issue of accessibility of potable drinking water in most field harvesting operations is generally not a problem.  However, as in this case, where workers are dispersed throughout orchards, such as citrus or avocado, or wine grape vineyards, the accessibility of water could be a factor leading to a violation of the Field Sanitation Standard.  Please note that the minimum penalty for a violation of Section 3457 is $750!  There is no mitigation of this penalty.  Therefore, it is recommended that orchard farmers, as well as farm labor contractors who work in the orchard or grape industry, insure that potable drinking water is readily accessible at the orchard or vineyard within a short distance from the employees.  While a portable toilet facility may be stationed within a 5-minute walk or one-quarter mile, there is a more restrictive standard for the availability of potable drinking water.

     With the high heat season now among us in California, violations of workplace water requirements take on additional significance.  Workers who are employed in work environments exceeding 85 degrees F must have at least 1 quart of potable water per hour per employee for each hour on the work shift (8 CCR Section 3395).  Please also note that the DOSH Heat Illness Prevention Q & A Guidance Document stipulates that “water must always be readily accessible.”  Therefore, DOSH agents investigating violations of the Heat Illness standard will apply the same “readily accessible” requirement as the ALJ did in the above case.

DISCLAIMER:  This is a publication of The Saqui Law Group and should not be construed as legal advice or a legal opinion on any specific facts or circumstances.  Transmission of the materials and information contained herein is not intended to create, and receipt thereof does not constitute formation of, an attorney-client relationship.  The contents are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have. 

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