Department of Health, L&I propose Ag crushing H-2A housing rules

By PAM LEWISON  | 
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Apr 24, 2020

As farm labor continues to be politicized, attacked on the political and legal fronts, the newest threat comes in the form of regulations proposed by the Washington State Departments of Health and Labor & Industries.

Thursday morning, the departments jointly released a draft rulemaking for “Emergency COVID 19 Rules for Temporary Agricultural Worker Housing” and are seeking comments on the document before Monday, April 27.

Under the proposed rules, the number of workers for cherry harvest would essentially be cut in half because of the proposed changes to bunkbed use, an untenable and, potentially, season-ending plan for many growers. After cherry harvest, agriculture employers could petition to use tents through the remainder of the harvest season. 

Farmers and farmworkers need workable solutions that make sense in the real world; solutions that keep farms solvent and farmworkers as safely employed as possible. The proposed rules still leave farmworkers and their employers at real risk of exposure and shutdown.

In housing with bunkbeds for workers with an H-2A visa, only the bottom bunk will be allowed for use; all beds will be required to have six feet of space surrounding them in every direction; a temporary, non-permeable barrier must be erected perpendicular to the wall and nearly to the ceiling between each bed with a minimum of three feet of space between the barrier and the bed; and all occupants must sleep in the same head-to-foot direction. The only exceptions to the sleeping quarters rules are for single-family occupants.

While maintaining these barrier and bed-spacing requirements, employers must also not impede egress in case of emergency, ensure ventilation and air flow are not compromised, and disinfect the barriers at least once a day. 

Additionally, employers are advised to discourage workers from visiting one another inside their living quarters and erecting plastic barriers around sinks and other common close-quarters areas.

While safety is of paramount concern for every person in the agricultural community, there are still crops to be grown and harvested this season. As the time crunch of fresh fruit harvests moves closer, the proposed rules are not practical or functional.

Washington state H-2A employers are fortunate to have a high return rate of their farmworkers, meaning they are able to hire the same workers from previous years more often than not. With a curtailing of the number of workers potentially available through a reduction of the housing supply, the farmworkers who are able to return may feel personal pressure out of loyalty to their employer, to push themselves too hard, putting their general health at risk. With COVID-19 infections seemingly affecting weakened immune systems more readily, such conditions could put farmworkers in greater jeopardy.

On a practical level, Washington state agricultural employers aimed to hire approximately 21,000 H-2A workers in 2020. By removing the use of upper bunks in communal living quarters, there will be about half as many approved spaces available. Under the new rules, H-2A visa requests will have to be revised for fewer workers, meaning fewer hands to do the same amount of work as in years past. Agricultural businesses have been struggling for years and every piece of fruit counts. Labor shortages mean fruit is left to rot, creating shortages in the grocery store and in the bank accounts of the farmers who hire workers both domestic and foreign.

In terms of functionality, barriers that reach nearly to the ceiling, are anchored to the floor, and span half the distance between each bed, make the mandatory ventilation and egress listed in the rulemaking difficult to achieve. 

The proposed rule also provides guidance for quarantining sick farmworkers. If a farmworker becomes ill, they are to be quarantined with other sick workers in separate quarters and provided with basic necessities, unless they are residing with their families. If a farmworker is living in a single-family dwelling, they are to be quarantined with their family until the illness passes. 

In the event a farmworker is hospitalized or taken to a clinic for treatment rather than remaining on the farm, the employer is responsible for ensuring all basic necessities are available for the farmworker wherever they are being cared for.

Examining all the rules together, questions of food security and funding for housing improvements, new housing accommodations, and additional, unplanned personal protection equipment (PPE) arise. Barriers made of Plexiglass or similar materials, tents that meet the specifications of WAC 296-307-16147/WAC 246-358-077, and additional washing stations or PPE, all cost money that may not be available to agricultural employers who have already budgeted for the year. Moreover, fruit left rotting in orchards, fields, and vineyards is not available for consumers in grocery stores.

Agriculture was declared an essential business by presidential directive from former President George W. Bush in 2003. The directive means that, particularly in times of crisis, the agricultural community should continue to provide food for the United States and beyond. Most consumers think of the agricultural community as farmers, dairy producers, and ranchers but it encompasses a vast number of people in various parts of the economy including farmworkers, equipment and parts salespeople, oil and gas purveyors, food processors and shippers, pesticide sales and applicators, and many more. As the COVID-19 crisis deepens in our state and around the country, the agricultural community and other essential businesses are working hard to try to meet the needs of the people around them.

The agricultural community in Washington state is not unique in its need for employees. Our state is famous for its production of tree fruits and berries in particular, two crops best cultivated and harvested by hand. Labor-intensive crops in the midst of a global pandemic pose a particular set of challenges for growers and for their workers.

Agricultural employers have high stakes investment in ensuring their employees are able to work safely and healthily through the COVID-19 crisis. Without our workforce, Washington state agriculture would suffer more this year than it has in recent years. Whether the workers are coming to our state on an H-2A visa or are already here, forcing ag employers to cut their labor force nearly in half to accommodate regulations that may or may not prevent the spread of COVID-19 while also forcing additional operating costs on those same employers is foolhardy.

Workable solutions in the form of increased access – specifically for farmers and farmworkers – to items like facemasks, rubber gloves, and other PPE, and disinfectants, scarce personal care items like paper towels, toilet paper, and alcohol-based hand sanitizer are far better options than expensive strategies that do not appear to have any field-tested success. 

If the agricultural community is going to survive this pandemic intact, we need to continue to look to find ways to protect farmworkers while prioritizing the functionality of farms at the same time. A farm that cannot pay its bills, cannot pay its farmworkers either. Safety should be prioritized with the help of increased access to supplies that have proven effective at this point. As more help and safety information become available, then shifts can occur to continue to improve the safety of workplaces for everyone who lives in and interacts with them.