Farmworker Justice Update: 06/04/2020
High COVID Risk Among Farmworkers
Farmworkers face a threat of high numbers of COVID-19 infections among their community. On one Tennessee farm all two hundred workers tested positive, and throughout the country farmworker communities are seeing high numbers of infections due to, among other reasons, an inability to isolate from one another at work or in employer provided housing. Little is being done to prevent infections. Social distancing guidelines are not being implemented by many employers, and the safety precautions being taken are often inadequate. However, it is impossible to know the true extent of the crisis because no one is collecting the number of infections among the farmworker population specifically and testing is still not widespread. Additionally, despite the ongoing crisis, there is still no national standard to protect farmworkers, and instead, each state has been left to decide whether to implement protection standards. The CDC recently issued some federal guidance regarding farmworkers and COVID, detailed in our “Health and Safety” section below. However, the guidance just recommends, rather than requires, steps to be taken by employers. Some states have similarly issued voluntary guidance, but many have not. The food supply relies on these workers, and they should be treated like the essential workers they are.
USDA and FDA Claim Power to Order Farm Production to Continue
On May 19, the United States Department of Agriculture (USDA) and the Food and Drug Administration (FDA) released a joint statement announcing that the USDA could use its authority under the Defense Production Act (DPA) to force farms to continue production. The FDA will continue to work with farms and other entities that do not fall directly under USDA authority according to the Memorandum of Understanding (MOU) between the two agencies, which follows an April 28 Executive Order on the food supply. The agencies claim that the DPA and the Executive Order could be used to override state and local health authorities, require farms to operate and force workers back to work even if safety conditions have not improved for workers. The MOU does not establish safety standards to protect workers from COVID-19.
Senators Introduce Bill with PPE Funding
Senators Debbie Stabenow (MI) recently introduced the “Food Supply Protection Act,” which aims to bolster various sectors in the food supply chain The bill includes grants and loans to purchase PPE as well as test kits and cleaning to protect workers (including farmworkers). Those same grants and loans can also be used to upgrade equipment so that small and medium sized processing plants can run more efficiently. Additionally, the bill provides funding to food banks and nonprofits to increase their ability to serve more individuals. Farmworker Justice supports this bill.
Washington Farmworkers Protest Working Conditions
Starting May 7, workers began striking over safety conditions at produce warehouses in the Yakima Valley in Washington. The county faced the second largest COVID infection rate in the state, and workers want more protections. Workers are calling for paid sick leave, hazard pay, safer working conditions and protection from retaliation amid the COVID-19 pandemic. Workers tried to report their concerns and fears to supervisors, but they felt dismissed and ultimately ignored. On May 26, workers delivered around 200 petitions and declarations from workers to the Washington Department of Labor. These documents have stories from farmworkers outlining inadequate safety standards and asking for more protections. UFW and Familias Unidas por la Justicia filed a lawsuit in order to force the hand of the Washington state government, and the government responded by implementing new Washington state farmworker protections.
Update on Farmworker Health and Safety
CDC Issues Interim COVID Guidance for Farmworkers and Employers
The Centers for Disease Control and Prevention (CDC) and the U.S. Department of Labor (DOL) recently issued joint interim COVID-19 guidance for agricultural workers and employers. The guidance includes recommendations for the screening and monitoring of workers, disinfection and sanitation, provision of masks and personal protective equipment, housing, and transportation. The guidance can be found on the CDC website.
OSHA Revises Its Enforcement Standard
On May 19, the Department of Labor (DOL) announced that the Occupational Safety and Health Administration (OSHA) was revising its enforcement standard during COVID-19. The agency announced that they will once again start in person inspections. Employers will be responsible for keeping records on positive COVID cases amongst their employees and whether the infection was work related. While it may be difficult to ascertain whether a case is work related or not, an employer must use the tools in their power to try to make a determination. Employers with 10 or fewer employees do not have the same reporting requirements. Instead, they need only report if there is a death or injury related to the COVID infection.
EPA Releases Guidance on Respiratory Protections for Pesticide Applicators
On June 1, the Environmental Protection Agency (EPA) announced a temporary respiratory protection standard for pesticide applicators during COVID-19. The agency provided this guidance because respirators used during normal times are in low supply due to the increased use of personal protective equipment (PPE) in other sectors. The EPA lays out alternative options including: using alternative respirators than those required on the label, hiring commercial applicators who have the correct PPE available, using pesticides that do not require PPE and waiting to do the application. However, the agency also provides another list of possible alternatives if the previous solutions are not feasible. These extra alternatives could put workers at risk as they allow use of expired masks, reusing and extending use of available masks and waiving certain requirements for mask fit testing.
Oregon and Washington Implement Farmworker Safety Standards for COVID
On May 28, Washington Governor Jay Inslee announced required safety protections at agricultural worksites to protect farmworkers from COVID-19. Employers are required to document and maintain a COVID-19 response plan. They must provide masks, additional handwashing stations, temperature checks at the beginning and end of a shift, timely access to testing for symptomatic employees, and education and training. The provisions went into effect on June 3, 2020.
Similarly, Oregon Governor Brown announced on May 29 that the state would be investing $30 million in protections for farmworkers. The state will be offering masks and hand sanitizer to employers for workers’ use, COVID mitigating efforts like a quarantine budget, and funds for workforce housing, field sanitation and employer provided transportation.
Washington and Maryland Governors Veto Chlorpyrifos Bans
After their respective legislatures historically passed bills to limit chlorpyrifos use in their states, Maryland and Washington governors vetoed the legislation allegedly due to COVID-19 budget impact concerns.
On March 10, the Washington state legislature had passed E2SSB 6518. The legislation directed funds to the Department of Agriculture to study the impact of the pesticide and ultimately develop rules to limit its use, and additional funds were to go to Washington State University to research effective alternatives to chlorpyrifos. However, on April 3, Governor Inslee vetoed those funding provisions citing the need to lower costs due to revenue lost during COVID.
On March 18, the Maryland legislature had passed a ban on the use of chlorpyrifos in the state. Farmworker Justice supported this ban and testified in the Maryland legislature in favor of the bill. The ban would have gone into effect on January 1, 2021. However, Governor Hogan chose to veto the bill in favor of the Maryland Department of Agriculture’s proposal that it would take steps to prevent chlorpyrifos use. The proposed steps are much weaker than those suggested in the bill. Advocates are asking the Maryland legislature to override the veto and enact this historic legislation.