Order of the Wisconsin
Department of Workforce Development
The Wisconsin Department of Workforce Development adopts the following rule to create DWD 301.07 (5) (bm), (11) (j), (k) and (L), (15) (n) and (o), (16) (r), (17) (e) and (f), (20) (h), (i) and (j), (21) (n), and (25), DWD 301.09 (2) (d) and (e) and DWD 301.10, relating to COVID-19 protections for migrant workers.
The statement of scope for this rule, SS 032-20, was approved by the Governor on May 1, 2020, published in register No. 773A3, on May 4, 2020, and approved by the Department on May 22, 2020. This emergency rule was approved by the Governor on June 4, 2020.
Analysis Prepared by the Department of Workforce Development
Finding of Emergency
The Department seeks to promulgate a new emergency rule in ch. DWD 301 for protecting migrant workers from the SARS-CoV-2 virus which causes the coronavirus disease 2019. (In this order, the virus and disease will be referred to as "COVID-19.") On April 14, 2020, at the direction of the Governor, the Secretary-designee of the Wisconsin Department of Health Services issued Emergency Order #25 to impose safety measures related to COVID-19 for migrant labor camps for the specific purposes of preventing exposure to COVID-19, caring for individuals with COVID-19, and preventing the spread of COVID-19. Because the risks associated with COVID-19 for migrant workers are likely to continue after Emergency Order # 25 expires on June 13, 2020, an emergency rule is necessary for the preservation of public health, safety, and welfare.
Explanation of Statutory Authority
The Department has specific and general authority to establish rules to enforce and implement the Wisconsin Migrant Labor Law, ss. 103.90 to 103.97, Stats. This authority includes ensuring migrant labor camps, transportation, and field work are safe for workers.
Related Statutes or Rules
Plain Language Analysis
Currently, ch. DWD 301 regulates housing conditions in migrant labor camps, imposes field sanitation standards, and provides notice of migrant labor rights The rule revises ch. DWD 301 to impose the following additional requirements. The rule requires migrant camp operators to provide separate, isolated living space to workers exhibiting COVID-19 symptoms, except for workers residing in certain family units. The rule specifies requirements for allowing migrant camp operators to provide alternative housing if symptomatic workers cannot be isolated in their current living space. Except for workers residing in individual family units, the rule requires migrant camp operators to assign symptomatic workers to separate toilet rooms or toilets. Except for individual family units, the rule requires daily disinfection of high-touch areas within toilet rooms and bathing, laundry, handwashing, cooking, eating, and sleeping facilities. In addition, hand-washing stations and hand sanitizer must be provided to workers in cooking and eating facilities and within sleeping facilities. In dormitory or barracks style housing, the rule requires reasonable effort to separate beds by at least 6 feet and provides that workers should sleep head-to-toe if possible. The rule requires migrant camp operators to make reasonable efforts to make sanitized cloth face coverings available for workers in living areas. The rule also imposes distancing requirements for field work and worker transportation. Finally, the rule requires migrant camp operators to post the rule's requirements in English and the language of camp occupants.
Summary of, and comparison with, existing or proposed federal regulations
The Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 29 USC 1801, et seq., sets standards for migrant and seasonal agricultural workers regarding housing and transportation.
Summary of comments on the statement of scope and description of how the comments were taken into account in drafting the rule
A preliminary public hearing on the statement of scope was held on May 21, 2020; comments were received at the hearing and by email. In sum, commenters generally supported promulgating rules to supplant Emergency Order # 25 before it expires. Commenters expressed the need for clear rules, as well as for educating workers, in their preferred language, about the protections under the rules, including social distancing, using personal protection equipment (PPE) properly, and reporting symptoms. In addition, commenters expressed the need to include facemask requirements in transportation and the workplace and to address the usage of bunk beds and ventilation in dormitory and barrack-style housing. Commenters suggested including reporting and retaliation protection for workers. One commenter generally supported incorporating the requirements of Emergency Order # 25 into the rule, but expressed concern that camp operators are unable to meet the social distancing in transportation in employer-provided vehicles and suggested an alternative means of protecting worker safety, such as PPE and distancing through every other seat in the transportation vans.
Agency Response: The Department considered all relevant comments received. The Department agreed that the requirements should be clear and enforceable and has tailored the rule to achieve those goals. The Department also amended the social distancing in transportation requirement to provide an alternative that would protect workers. Comments related to reporting and retaliation protection for workers were deemed outside the scope of the statement of scope.
Comparison with rules in adjacent states
No agency in an adjacent state has promulgated rules that specifically address protecting migrant workers from exposure to COVID-19. Iowa agencies have issued a joint guidance document with recommendations for preventing migrant worker exposure to COVID-19.
Summary of factual data and analytical methodologies
Emergency Order # 25, ch. DWD 301, and relevant statutes relating to the Wisconsin Migrant Labor Law were reviewed as part of the process for developing this proposed rule.
Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis
This rule is intended to prevent the spread of disease in the migrant labor camps and is intended to have no negative impact on business. Therefore, no analysis was necessary.
Effect on small business