Feb 2, 2021

Emergency COVID-19 regulations face lawsuit from Washington groups

Leading agriculture groups in Washington state announced Feb. 2 they are taking legal action against the sate of Washington over recently renewed emergency COVID-19 regulations they say are ill-conceived, increase health risks to essential farm workers and are pushing farmers out of business.

“After nearly a year of asking the state to work with the farm community to make needed adjustments to the COVID-19 emergency regulations, they were renewed once again largely wholesale,” John Stuhlmiller, chief executive officer of Washington Farm Bureau, said in a news release. “We’re disappointed we had to take this step, but our farms are on the line and we had no other choice.”

According to the release, despite the willingness of farmers to embrace best practices, on Jan. 8 the Department of Health and Labor & Industries renewed emergency temporary farm worker rules for the third time with minimal changes from when emergency rules were first adopted last spring. The farm groups’ appeals were also rejected by Gov. Jay Inslee.

Farm leaders say many of the state’s emergency regulations for farmers are unworkable. The state has made adjustments for other sectors, including schools and construction, that incorporate improved understanding of COVID-19 transmission and best practices.

One key point of contention in the suit is the state requirement for farmers to provide twice-daily medical visits to isolated farm workers with COVID-19 symptoms. Health care professionals in rural and isolated communities, who are currently being called upon to administer vaccinations, are not able to provide this level of care. Moreover, the state doesn’t provide this standard of care for its own congregate housing facilities, and no other industry has this requirement.

“We want farm workers to get the medical care they need. But doctors – not the state – should direct the appropriate level of care.  This is what we told the state,” Stuhlmiller said.

Other infeasible or misguided regulations called out in the suit include:

• Requiring 20-minute access to emergency services and one hour access to an emergency room with a ventilator is largely impossible in many rural and geographically isolated areas.
• Restricting occupancy of farmworker housing even after workers have been vaccinated is not based on any scientific foundation and economically ruinous for farmers by limiting their workforce to 50 percent.
• Allowing undefined non-essential “community workers” access to farms risks spreading COVID-19 in areas that are largely isolated and counter to established medical guidance. Last year elected officials, labor organizers and others visited farms, risking farm worker safety.
• Continually rolling over the same emergency regulations for the past year has essentially created permanent rules without following due process for farmers outlined in state statutes.

Farmers face steep financial penalties for not meeting these regulations.

In the coming season, 25,000 guest workers arrive due to a chronic labor shortage and then return to their home countries as part of the annual H-2A guest worker program. Farmers pay prevailing wages and provide licensed and inspected housing, transportation and personal protective equipment for these vital workers.

Many farmers have agreed to test workers upon arrival to congregate housing facilities and are calling on the state to support their efforts to keep them quarantined on farms until they are vaccinated to limit possible COVID-19 community spread.

“Farmers cannot stay in business if they can only employ and house half their workforce even after they are vaccinated,” said Dan Fazio, executive director of wafla. “We’ve watched as the state has worked with other industries to make reasonable adjustments and it’s unfortunate that farmers have to ask a judge to be treated the same.”