Order of the Wisconsin
Department of Workforce Development
The Wisconsin Department of Workforce Development adopts the following rule to create DWD 301.015, 301.06 (8m), 301.07 (5) (bg), (br) and (e), (11) (k), (k) and (L), (15) (n), (16) (r) and (s), (17) (d) 3., (e) and (f), (20) (h), (i) and (j), (21) (n) and (25), 301.09 (2) (d) and (e) and 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 March 11, 2021.
Analysis Prepared by the Department of Workforce Development
Finding of Emergency
The Department seeks to promulgate a new emergency rule to revise ch. DWD 301 protections for migrant workers from the SARS-CoV-2 virus which causes the coronavirus disease. (In this order, the virus and disease will be referred to as "COVID-19.") Chapter DWD 301 regulates migrant labor work agreements and housing conditions in migrant labor camps, imposes field sanitation standards, and provides for notice of migrant labor rights.
On April 14, 2020, at the direction of the Governor, the Secretary-designee of the Wisconsin Department of Health Services (DHS) 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, assisting individuals with COVID-19, and preventing the spread of COVID-19. Because the risks associated with COVID-19 for migrant workers were ongoing when Emergency Order # 25 expired on June 13, 2020, the Department promulgated emergency rule EmR2014 on June 12, 2020.
Emergency rule EmR2014 revised ch. DWD 301 to temporarily impose various protections for migrant workers in the camps, the fields, and in employer-provided transportation. The protections were based on the public health information available a year ago from DHS and the U.S. Centers for Disease Control and Prevention (CDC). The Joint Committee for Review of Administrative Rules (JCRAR) extended EmR2014 for the maximum period allowed under s. 227.24 (2) (a), Stats. As a result, EmR2014 expires on March 8, 2021.
When the emergency rule was issued, the Department did not contemplate a need for emergency rules to extend into the 2021 migrant labor season. Therefore, the Department did not seek to promulgate the revisions to ch. DWD 301 as a permanent rule. However, the COVID-19 pandemic continues to threaten public peace, health, safety, and welfare, as evidenced by Executive Order # 105 (dated February 4, 2021).
In consultation with DHS and interested stakeholders, the Department is promulgating a new emergency rule that will allow the Department to respond to the spread of COVID–19 in migrant labor camps by revising the safety protections under emergency rule EmR2014. The new rule does not duplicate EmR2014, but is based on more recent public health guidance related to the benefits of wearing face coverings, distancing, and otherwise preventing the transmission of COVID-19. The Department estimates over 4,400 migrant workers will live in employer provided housing in Wisconsin in 2021. The majority of migrant workers begin arriving in March and stay through the fall. The health and safety of migrant workers in employer provided housing affects the health of the other employees and the whole community.
Statutes Interpreted
Section 103.905, Stats.
Statutory Authority
Section 103.905, Stats.
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
Sections 103.90 to 103.97, Stats., and ch. DWD 301.
Plain Language Analysis
The emergency rule requires migrant camp operators to make reasonable efforts to effectively isolate the following types of workers: 1) workers who test positive for COVID-19; 2) workers with COVID-19 symptoms who have not tested positive or have not received test results; and 3) workers who have been in close contact with persons diagnosed with COVID-19.
The emergency rule also requires migrant camp operators to disinfect high-touch areas within bathing, laundry, handwashing, cooking, eating, and sleeping facilities and toilet rooms, and to separate beds by at least six feet or place physical partitions or barriers between beds. The emergency rule allows camp operators to use bunk beds if camp operators request that occupants sleep head-to-toe. Additionally, the emergency rule requires camp operators to space kitchen and dining room tables at least six feet apart during shared meals or other events unless individual barriers are placed between workers. The emergency rule also requires camp operators to provide hand-washing stations and hand sanitizer to workers in all cooking and eating and sleeping facilities.
Further, the emergency rule requires camp operators and employers to make available for workers face coverings in living and common areas, in the fields, and in employer-provided transportation. The emergency rule provides that employers and camp operators supervising field workers should allow workers sufficient space to maintain six feet of social distancing, including during lunch and breaks. In addition, employers must ensure, whenever possible, that workers engage in social distancing, provide ventilation and hand sanitizer during transportation, and ensure that vehicles are disinfected.
The emergency rule requires a camp operator to submit for the Department's approval a COVID-19 safety plan that does all of the following: 1) details how the camp operator will provide housing that complies with the emergency rule's isolation requirements; 2) identifies the entity with whom the camp operator will work to provide COVID-19 testing and health services to camp occupants; 3) describes how the camp operator will implement recommendations of DHS for COVID-19 screening and testing; and 4) describes how the camp operator will assist camp occupants in obtaining COVID-19 vaccinations. The emergency rule also requires camp operators to post a copy of the emergency rule that is made available by the Department.
Finally, the emergency rule requires employers to specify in work agreements and written recruiting disclosure statements whether early arrival or late departure from migrant camps is required for COVID-19 testing. The emergency rule also allows employers to make certain housing changes necessary to isolate workers without having to revise work agreements.
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. 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 using every other seat in the transportation vans.
Agency Response: The Department considered all relevant comments received in drafting EmR2014. Those comments were also considered in drafting this new emergency rule. For the new emergency rule, the Department agreed that the requirements should be clear and enforceable and 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. Moreover, the Department discussed the need for a new emergency rule during the Governor's Council on Migrant Labor meeting on January 27, 2021. Council members provided input about the need for a new rule that provided worker protections and certainty for employers. The Department also informally collected comments that were generally supportive of a new rule. Some commenters wanted stronger protections for workers that were mandatory and one commenter was opposed to bunk bed prohibitions. Those comments have been considered and incorporated into this new emergency rule. Further, the Department accepted written comments about the draft emergency rule on its website. The comments were generally supportive, except that one commenter expressed the need to minimize or reduce the use of bunk beds and impose more requirements to improve ventilation in housing. That commenter also stated that one provision of this new emergency rule is confusing. The Department considered the comments and made one revision to clarify the rule.
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