New COVID-19 regulations hurt farmers

by Rachal Pinkerton
Staff Writer | June 26, 2020 1:00 AM

OLYMPIA — The new rules handed down by the governor’s office with regard to worker safety has put farmers and orchardists in a very difficult place.

Bre Elsey, associate director of government relations for the Washington Farm Bureau, said that the new rules are devastating for the ag industry.

While there are several issues with the new rules, one of the overarching problems is the way they are being treated as fineable offenses. Elsey said that they are being treated as emergency rules and that farmers can be fined up to $10,000 for not following them.

But this is being challenged in court.

“What the lawsuits are about is, are they actual rules?” Elsey said. “Does the governor have the ability to enforce them? We have not seen rules come down like this before.”

When new rules are issued, according to the Department of Labor and Industries website, they go through a period of public comment and the public is given notice of the changes. The website did not specify the length of the comment period.

“The public is notified that major changes are coming to their industry and how they are expected to be in compliance,” Elsey said.

But with the new rules, none of the normal procedures were followed. According to Elsey, this is where the outrage at the new rules comes from.

“There was sometimes 24 to 48 hours’ notice,” Elsey said. “The public did not get a chance to weigh in. It was very unprecedented.”

The new agriculture rules hit three main areas – workplace safety, transportation and housing.

The housing rules came down first. Farmworker unions had asked the state to have all bunk beds removed from farmworker housing during COVID-19.

“The new housing rules came out a few weeks before cherries and berries started to be harvested,” Elsey said. “Farmers were looking at losing workers just as contracts were being signed. Farmers had to debate whether they could fulfill their contracts.”

In the end, the rule, known as the bunk bed rule, allowed for 15 workers per house group. But the odd number of workers allowed has caused some frustration as well.

“Can they at least tell us that in some capacity that the numbers are based in science?” Elsey said. “When I see numbers like 15, it makes me think it is not based in science, but bureaucrats coming up with numbers that sound nice.”

Elsey said that the Washington Farm Bureau has requested information from the governor’s office concerning how the number 15 was reached, but has not received any answers.

A couple of weeks after the housing rules came out, two new rules concerning handwashing and transportation were issued.

The new rules changed the distance at which handwashing stations have to be placed. Normally, handwashing stations have to be within 440 yards of employee work sites. But the emergency rules have mandated that the stations may be no more than 110 yards from workers at all times.

“Is that 110 yards from the closest worker or the farthest worker?” Elsey said.

There are other issues of how farmers are to get handwashing stations into orchard blocks or places like wheat fields.

“The rules were released without any clarifying documents that allow farmers to avoid fines,” Elsey said.

Wheat farmers have had a difficult time with the handwashing requirements and are seeking clarification from the governor’s office. Elsey pointed that if an employee is the only worker within an area of three football fields, their transmission rate is very low.

“Some clarification has allowed for a Gatorade-size cooler,” Elsey said. “But they have said that hand sanitizer is not a substitute. It would have been easier to put in an orchard block. It doesn’t seem to follow any CDC recommendations or some kind of science.”

The other rule that has come down regards the transportation of farmworkers. The rules require that workers wear masks and have barriers between them when being transported. There are also limitations on the number of workers that can be transported at one time.

“They did not seem to follow recommendations for similar industries with similar transmission risks,” Elsey said.

Elsey said that construction workers have a similar rate of transmission and are only required to wear masks when being transported.

“Why are they picking winners and losers here?” Elsey said. “It is different for every industry. There is no explanation as to why. Farmers are struggling right now. We don’t have a demographic that is flush with cash right now. Why do they have three times the expense in transportation requirements?”

The new rules came out in the middle of a lawsuit in which farmworker unions sued Washington state, claiming that L&I had not done its due diligence in protecting farmworkers. While the judge found that L&I had done its due diligence, the fact that the new rules came out in the middle of the lawsuit has caused some to speculate that they were published to protect the state during the court case. Elsey said that the original lawsuit is ongoing and another lawsuit had been filed stating that housing rules aren’t protective enough.

A problem with all of the new regulations is that some farmers already have “incredibly high food safety regulations” that exceed state standards.

“The government and public are not aware what farmers already have to do to sell to the food industry,” Elsey said. “If we had a government that understood agriculture better, they would have already known this.”

Some of the new agriculture rules conflict with the food safety standards already in place.

“Farmers have to choose between violating food safety or being fined by the government,” Elsey said. “The rules set agriculture up for failure.”

The Washington Farm Bureau has intervened in one of the lawsuits filed by the farmworker unions. It has also sent out steps that farmers and orchardists can take to protect themselves against unnecessary surprise inspections and reduce the risk that an inspector might infect workers with COVID-19.

On Tuesday, June 16, they filed supporting documents in a lawsuit brought against L&I by the Building Industry Association of Washington. The suit seeks to nullify the L&I rule that allows all industries in the state found to be in violation of the governor’s proclamations to be fined up to $10,000.

While the emergency rules have an expiration date, there is a chance that the governor will extend the rules for some time. Elsey suspects that after the emergency rules have expired, these rules will be pushed through the legislature and become permanent.

“It will be hard to go back to what it was before,” Elsey said. “I wouldn’t be surprised if there is legislation to put the emergency rules into permanent rules. These rules are devastating for agriculture.”

Rachal Pinkerton may be reached via email at rpinkerton@basinbusinessjournal.com.