Protecting Workers From Valley Fever: Best Practices and Cal/OSHA Guidelines for High-Risk Jobs

Speaker 1: Welcome to the Ogletree Deakins podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only, and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.

Karen Tynan: Hello everyone, and thank you for joining us for the Ogletree Deakins Podcast. My name is Karen Tynan and I’m a shareholder in the Sacramento California office and chair of the West Coast OSHA practice. Here with me today is a fellow member of our workplace safety group here at Ogletree, at our new office down in Fresno, Kevin Piercy, a Fresno shareholder and fellow workplace safety practice attorney. And we’re talking today about Valley Fever in the workplace. It’s an important topic for California employers, especially in the Central Valley. So Kevin, are you ready?

Kevin Piercy: Absolutely.

Karen Tynan: Kevin, let’s start out with the basics. You’re in Fresno, and I think you’re really familiar with Valley Fever. Can you tell our listeners what in the world is Valley Fever?

Kevin Piercy: Yeah, so Valley Fever is a condition that arises out of some fungal spores called the Cocci fungus. It’s got obviously a much longer scientific name. We’ll just keep it simple as the Cocci fungus. And the symptoms that arise with it tend to be actually very similar to COVID. So prior to the COVID craze kind of taking over the country, California especially, and the Central Valley, we had our own symptoms of this. So it was Valley Fever, it’s a cough, fever, shortness of breath, headache, fatigue, body aches. You would even have night sweats and a rash. And most people get over it fairly easily without any additional treatment, but it can lead to serious complications and in some rare instances, even death.

Karen Tynan: And so thinking about Valley Fever, what are either the laws or statutes? What Cal/OSHA regulations are we talking about when we’re talking about Valley Fever? What is going to apply for our California employers?

Kevin Piercy: Yes, so we are talking about the Cal/OSHA regulations such as Section 342, the reporting work connected fatalities and serious injuries, if that unfortunately does arise. Section 3203, injury and illness prevention, making sure that you have proper, adequate, proper documentation of this in your IPPs. Section 5141, it’s control of harmful exposures, section 5144, your respiratory protection, and of course section 14300, that’s the employer records log 300.

Karen Tynan: So that’s all in Title A of the California Code of Regulations. And it sounds like that’s what Cal/OSHA would go and look to issue citations on any of those sections. Is that right, Kev?

Kevin Piercy: That’s correct.

Karen Tynan: So you’re in the Central Valley, you’re in our Fresno office there. Where is the footprint? Where do we find Valley Fever?

Kevin Piercy: Well, Valley Fever gets its name from here in the Central Valley, but it doesn’t just attack in California. It’s pretty much through the southwest from California down through Texas, but it tends to be in hot arid places. But we’re specifically looking at here in California, the counties where it’s endemic are counties of Fresno, Kern, Kings, Madera, Merced, Monterey, San Joaquin, San Luis Obispo, Santa Barbara, Tulare, and Ventura.
This has actually grown quite a bit over the last several years. 20 years ago, it was much fewer counties. Really the only real problem counties were Kern, Kings, and Tulare, and San Luis Obispo were the real big problem ones. Obviously, Fresno has always kind of had small issues with it, but it seems to have really grown within the last 20 years.

Karen Tynan: And so based on that footprint, I’m understanding that understanding employers with those kinds of… And we’ll talk about the work activities that increase the risk next, but employers with a footprint in those kinds of counties and in the Southwest, we’re really focusing in on those areas. Is that about right, Kevin?

Kevin Piercy: That’s correct.

Karen Tynan: So we’ve talked about the areas and what it is. So tell us about the type of work activities that are going to increase the risks, the exposures to Valley Fever.

Kevin Piercy: So what we are really looking at here for the work activities is something that’s going to disturb the soil because that’s where Valley Fever fungus spores are found, they’re found in the soil. And so it’s big things that are construction jobs, people that are, if you have archeologists that are working, geologists, wildland firefighters, military personnel oftentimes out in the field, workers in mining, pouring, gas and oil extraction jobs, those types of things. And especially agriculture workers, which is a very big issue here in the Central Valley, which is the home of agriculture in California.
And really in any of these counties that have the big problems with Valley Fever, what you are all going to be on the lookout for is outside jobs. Even if hey, we’re not disturbing the soil. Well, sometimes we get weather patterns that are coming in and it kicks up the dust, or we have employees that are working outside near areas where other construction is going on or something else is happening outside. And so when all that dust starts rising up, that’s when we really have to start worrying and say, “Okay, what are we going to do to protect against all this? How are we going to mitigate these factors?”

Karen Tynan: Right. And when we were doing some research for this podcast, there are a couple of cases that talk about work activities that cause citations to be issued. And I think trenching, construction activities, like you’re talking agriculture, the disturbing of the soil, what Cal/OSHA looks for is if you have those kinds of activities going, are you addressing the risk of Valley Fever either in your JHAs, your job hazard analysis, under your IIPP? What are you doing for engineering controls? What are you doing for administrative controls and what are you doing for PPE related to that risk of Valley Fever that you’re talking about? So thinking about the risk of Valley Fever, what are the prevention methods for Valley Fever that Cal/OSHA is going to be looking for these California employers to do?

Kevin Piercy: So the first thing that you want to do is really determine if you’re in one of these endemic areas. And if you are, then Cal/OSHA has even put out some guidance as to really what they want you to be looking at. And so they want you to adopt different site plans and controls and work practices to reduce those exposures for your employees, such as minimizing the area of soil that’s going to be disturbed. Using water, appropriate soil stabilizers or some sort of re-vegetation to reduce the airborne dust in the area. It could be stabilizing any spoil piles by tarping them or some other sort of method that would stabilize them. It could also include providing enclosed air-conditioned cabs for the vehicles that generate dust and make sure that workers keep windows and outside air vents closed. That’s actually been one of the main problems as we in doing research and seeing that the types of cases we tend to have out there are more of these construction vehicles that are not enclosed.
Right? They’re not enclosed cabs. And then, “Okay, what’s going on now? Okay, you don’t have an enclosed cab? Well what about a respirator? Something that to protect them during the times when these protections aren’t there.” They also want to make sure you have something in your program to say, suspend work during heavy winds periods. Workers upwind of digging and other dust kind of activities using vacuums with proper HEPA filters, water, wet towels, the wet kind of methods to clean soil equipment, those types of things.
And of course, keeping the break areas, eating areas and sleeping quarters, keeping those clean and clear of dust. Obviously, that’s something that a lot of people, unfortunately, they will look and they’ll say, “Hey, we are taking care of all the actual job activities, we’re taking care of those and we’re protecting those” and forgetting our employees are going to go take rest breaks and meal breaks. Sometimes they’re not going to really leave the site. So what are we doing providing them an area where they can do this, where they’re not going to be exposed to these hazards?

Karen Tynan: And I noticed in one of the cases that did go up before the appeals board, I like what you mentioned because in those cases the judges looked at actually where the employees were taking breaks and the employees were taking the breaks outdoors in the dusty areas. And I thought that was interesting that the judges considered that.
And also in the cases that were decided before these ALJs, I also noted that in one of the cases the employer had provided respirators, but made them optional. And so there was a report that workers were only wearing bandanas and not the respirators. Do you have any thoughts about if you are going to implement these kinds of controls, having the enforcement of the respirators or ensuring that people aren’t just wearing bandanas over their face? Kevin, what do you think of that?

Kevin Piercy: Yes, it’s really important that we actually do train the employees that they are required to wear them when these exposures are happening that say even one of the primary methods that a lot of people will use out here is watering the soil before doing earth-disturbing activities. Well, the soil’s going to dry out. And there was even a case, as we discussed when we were doing our research on this, is there’s even cases where this is specifically addressed, the soil’s going to dry out and you have to re-water. Well, during that period of time where it’s not as effective, the wet soil’s not as effective, or maybe it’s even completely dried. So it’s completely ineffective.
During that time, the employees have to be wearing a respirator or something. It may be an enclosed cab, but they have to be protected at that time during those intermittent periods. And we have to inform the employees that you have to follow the rules, but we also make sure that our supervisors are out there and enforcing these rules because a rule that’s not being enforced, it might as well not even be there. In fact, it’s even worse than that because now you’re going to get tagged for, you have something written down and you’re not even following your own rules. So of course, we definitely have to make sure the employees are following these rules.

Karen Tynan: That’s a great point. And I also want to weave in that when we looked at these cases where Cal/OSHA has issued citations for Valley Fever, they issue them typically as serious citations and they have their internal medical expert, the employee’s medical record. Let’s say someone reports Valley Fever, but Cal/OSHA will put on a medical expert and we’ll have testimony that Valley Fever, much like pneumonia or COVID, is a serious illness.
And so it’s not a situation where you will get just a couple of general citations or maybe pay a penalty of $300 or $400. These citations related to Valley Fever generally if they’re IIPP or respirator-related or identifying hazard related, I see them issued as serious citations. Do you see the same, Kevin? I know this is kind of a nuanced area for workplace safety nerds, but you see it as serious too, right? That’s what Cal/OSHA is going to issue?

Kevin Piercy: Yeah. And that’s actually the real danger that we have here. I mean, obviously anyone who’s in this area understands a general citation is going to be what you’re really hoping for if you’re going to have to get hit, you’d rather have the general, that serious is going to be much more expensive and time-consuming on that one. And these are definitely seen as serious.
And so there’s obviously going to be a lot that goes into defending these, right? As you said, there’s medical experts and all that. And as I even brought up in the very beginning, as far as the severity of the illnesses, this can actually have really long-term lasting effects on the person’s health. It can cause serious lung damage. It can even in some cases lead up to death. I mean, it’s not super common that people die, but it does happen. And these long-lasting injuries do occur similar to long COVID type of thing, where a person, they did have it, they didn’t quite respond well to it, and now for years, this person is now affected by the ramifications of this, unfortunately, this endemic fungal spore that is here in California.

Karen Tynan: No, great point for the long-term effects. So let’s ask kind of the final big question, Kevin. So what happens when a worker reports to their employer either these Valley Fever symptoms or they’ve been diagnosed with it, they think they got it at work. Can you tell us the employer’s duties, what the expectations are? Give us a roadmap there.

Kevin Piercy: Yeah, so the expectation here is first and foremost, if you have an employee who gets, say hospitalized over this, and there’s any sort of risk that this was potentially a workplace exposure for Valley Fever, which unfortunately, spoiler alert, California is going to side with the, it’s more likely than not that it was a workplace exposure if there’s any of these potential risk factors here. Even though it’s endemic in these areas, it’s still a risk and they’re going to side that way.
And so obviously if there’s a workplace hospitalization or a death, those would have to be reported to Cal/OSHA. The employers obviously are going to have to complete the report of occupational injury or illness, the Form 5020 for each suspected occupational Valley Fever illness. And Cal/OSHA even says, “Hey, look, this happens. Send the workers to a workers’ comp healthcare provider or occupational medicine clinic whose staff is knowledgeable about Valley Fever,” which can be a little difficult in here.
I mean, even though this is an area that’s endemic with Valley Fever is not a lot of Valley Fever, very knowledgeable medical staff. This is something that, again, it’s not super common. And so it is one of those issues where now we have to work and we have to find a place to send our employees, someone that’s going to be able to get some treatment and help diagnose these.
They’re also going to want to alert the provider or clinic to the possibility that the employee was exposed to dust that may contain the toxic spores. And the physician’s, of course, are going to have to submit their own doctor’s first report of occupational injury or illness form for each of the employees that’s evaluated for the Valley Fever.
And that really is one of those things that we do see in a lot of these cases that what happens is you do have one or two employees, they contract the Valley Fever. And so what do you do at that point? “Okay, I have this guy, he’s got Valley Fever, well crud, I got 20 other guys on this crew that we’ve been working on for a while. What are we doing?”
First of all, we are checking all of our IIPPs. We’re like, “Have we addressed this issue? Did we properly assess this? Okay, we did. We’re good. Now we want to make sure that, hey, we got to send our employees, everyone who’s been potentially exposed, let’s check them out. Anybody, can we catch us in the early stages, prevent any work stoppages, make sure these guys are going to be taken care of. If they need further help, we get that taken care of.”
And then reassess is the really most important thing we have to do at this point is even though we have our own engineering controls, we have all these things. We just had a couple of employees who came down with Valley Fever. So is what we have established, is that truly effective? Is there any gaps in our coverage? What can we do? “Okay, maybe we need to start using a water method to wet the dirt. Maybe we need to start cleaning services a little bit better. What can we do to mitigate this from happening in the future?”
And so start taking that proactive, “Okay, so something got through our defenses. Okay, we’re going to protect that. We’re going to stop that, but how are we going to shore up our defenses?” And that’s really one of the most important things there, not just because obviously with Cal/OSHA it’s going to come after you, but more importantly is we want to make sure that we are taking care of all of our people. And so, “Okay, let’s fix this. Let’s find what we have to do. Is this engineering control? Is this an enforcement issue? Are employees just not wearing their gear?” And we will do our own little investigation on this and see what we can do to fix things up. So that way in the future, we don’t have a repeat of this.

Karen Tynan: Yeah, for sure. Because under the IIPP regulation, when you have an incident, you have to have that investigation to make a determination about the engineering controls, administrative controls, PPE. And so that is a requirement, and I like what you’re talking about with the reevaluation and asking, “Hey, is what we’re doing sufficient? Did these workers contract Valley Fever at work?” Because people live and work many times in the same areas. And I see that sometimes that’s something that Cal/OSHA has some proof issues around, probably for another podcast about causation and Cal/OSHA citations, but I think we’ve covered Valley Fever really well.
Let’s close it out with a thank you for listening to Karen Tynan and Kevin Piercy today. Look for our blog articles and check out our practice page, the Workplace Safety Practice Group on the ogletree.com website, and also follow us on LinkedIn. Thanks for listening and stay safe out there.

Speaker 1: Thank you for joining us on the Ogletree Deakins podcast. You can subscribe to our podcasts on Apple Podcasts or through your favorite podcast service. Please consider rating and reviewing so that we may continue to provide the content that covers your needs. And remember, the information in this podcast is for informational purposes only and is not to be construed as legal advice.