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
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.
Comparison with rules in adjacent states
Except in Michigan, no agency in an adjacent state has promulgated rules that specifically address protecting migrant workers from exposure to COVID-19. Except in Michigan, agencies in adjacent states are issuing guidance and recommendations from their health departments and sharing CDC and Occupational Safety and Health Administration recommendations to employers. On March 2, 2021, the Michigan Department of Agriculture and Rural Development promulgated emergency rules requiring owners and operators of agricultural labor housing camps to develop and implement COVID-19 preparedness and response plans, which must include a training component for providing adult camp residents with information about social distancing, personal protective equipment, and enhanced sanitation and prevention measures. The emergency rules also require camp operators to report to local health departments information about camp residents who exhibit COVID-19 symptoms or who test positive for COVID-19. The emergency rules include other requirements, including requiring camp operators to arrange for those camp residents to be evaluated by healthcare providers and requiring camp operators to provide isolation and quarantine housing to those camp residents.
Summary of factual data and analytical methodologies
Emergency Order # 25, ch. DWD 301, emergency rule EmR2014, and relevant statutes relating to the Wisconsin Migrant Labor Law were reviewed as part of the process for developing this proposed rule. The Department also considered information provided by DHS and the Department of Agriculture, Trade and Consumer Protection, recent CDC guidance, and comments from various stakeholders.
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 net impact on business. Therefore, no analysis was necessary.
Effect on small business
No negative net impact on small business.
Agency contact person
Program and Planning Section Chief
Migrant and Seasonal Farmworker Programs and Job Service Call Center
Department of Workforce Development
201 East Washington Avenue
P.O. Box 7972
Madison, WI 53707
Telephone: (608) 733-3907
Place where comments are to be submitted and deadline for submission
Comments will be accepted until a date to be determined.
SECTION 1. DWD 301.015 is created to read:
DWD 301.015 Definition. In this chapter, "COVID-19" means the SARS-CoV-2 virus and any related disease.
SECTION 2. DWD 301.06 (8m) is created to read:
DWD 301.06 (8m) (a) The work agreement and written recruiting disclosure statement required under s. 103.915 (1) (a), Stats., shall specify whether for purposes of COVID-19 testing or isolation a migrant worker is required to arrive at a migrant labor camp before or depart a migrant labor camp after the period covered by the minimum work guarantee under sub (8).
(b) If a work agreement requires for purposes of COVID-19 testing or isolation that a migrant worker arrive at a migrant labor camp before or depart a migrant labor camp after the period covered by the minimum work guarantee under sub. (8), the period of employment and the guarantee of minimum work shall begin on the date the worker is required to arrive at the migrant labor camp and shall continue until the migrant worker departs the migrant labor camp.
(c) If an employer enters into a work agreement that does not require for purposes of COVID-19 testing or isolation that a migrant worker arrive at a migrant labor camp before or depart a migrant labor camp after the period covered by the minimum work guarantee under sub. (8), and the employer subsequently imposes that requirement on a migrant worker, the employer shall as soon as practicable after imposing the requirement revise the work agreement to comply with par. (b).
(d) If an employer changes the type of housing that is specified in a work agreement to isolate a worker under s. DWD 301.07 (11) (j) 1., the employer is not required to revise the work agreement. For all other changes to the type of housing, the employer shall revise agreements as required under this section.
SECTION 3. DWD 301.07 (5) (bg) and (br) are created to read:
DWD 301.07 (5) (bg) "Exposed worker" means a migrant worker who has been in close contact with a person diagnosed with COVID-19.
(br) "Family unit" means a one-family housing unit or a family living unit that is part of a multifamily unit.
SECTION 4. DWD 301.07 (5) (e) is created to read:
DWD 301.07 (5) (e) "Symptomatic worker" means a migrant worker exhibiting symptoms of COVID-19 who either has not been tested for COVID-19 or has not received the results of a COVID-19 test.
SECTION 5. DWD 301.07 (11) (j), (k) and (L) are created to read:
DWD 301.07 (11) (j) 1. Except as provided in subd. 2., a camp operator shall do all of the following:
a. Make reasonable efforts to effectively isolate exposed workers and symptomatic workers from all other camp occupants. For purposes of this subd. 1. a., "effectively isolate" includes providing each worker with a private bathroom, sleeping area, and cooking and eating facility. If a camp operator cannot effectively isolate exposed workers and symptomatic workers from all other camp occupants, the camp operator shall provide living spaces to exposed workers that are separate from living spaces for all other camp occupants and provide living spaces to symptomatic workers that are separate from living spaces for all other camp occupants.
b. Effectively isolate workers who test positive for COVID-19 from all other camp occupants who have not tested positive for COVID-19. For purposes of this subd. 1. b., "effectively isolate" means to provide a sleeping area, bathroom, and cooking and eating facility that is not shared by camp occupants who have not tested positive for COVID-19.
2. A migrant worker who resides in a family unit that is occupied exclusively by members of his or her family may opt to remain in that family unit.
3. A camp operator shall provide food and water to workers isolated or provided separate living spaces under subd. 1. in order to minimize the spread of COVID-19.
4. If a camp operator is not able to isolate or provide a separate living space to a worker under subd. 1. in the worker's current living space, the camp operator shall provide alternative housing to the worker.
5. If alternative housing required under subd. 4. is not within a migrant labor camp certified under sub. (1), the camp operator shall seek a variance under sub. (7) (a) in accordance with the following requirements:
a. When possible, a variance request shall be submitted in advance of the need for alternative housing. If a variance has not been requested in advance, the camp operator shall submit a request as soon as the camp operator becomes aware of the need for alternative housing. All variance requests must be submitted on the department's variance form to MSFW@dwd.wisconsin.gov.