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
Kathryn Mueller
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.
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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. b. The department shall approve or deny the request for a variance within two business days of receipt of the request.
c. The variance may be subject to inspection and be in effect pending inspection. The department shall conduct inspections as soon as practicable and inspections may be performed remotely in conjunction with camp operators.
(k) 1. A camp operator shall submit for the department's review and approval a COVID-19 safety plan for each migrant labor camp that the camp operator maintains. Except as provided in subd. 2., a camp operator shall submit the plan with the camp operator's application under sub. (1) for a certificate to operate a migrant labor camp. The COVID-19 safety plan shall do all of the following:
a. Detail how the camp operator will provide housing that complies with par. (j) 1.
b. Identify the entity with whom the camp operator will work to provide COVID-19 testing and health care services to camp occupants.
c. Describe how the camp operator will implement recommendations of the department of health services for screening and testing camp occupants for COVID-19 and how the camp operator will assist camp occupants in obtaining COVID-19 vaccinations.
2. If a camp operator applied for a certificate for a migrant labor camp under sub. (1) before the effective date of this subdivision, the camp operator shall submit the COVID-19 safety plan required under subd. 1. to the department at the time that the department inspects the migrant labor camp.
3. If a camp operator is aware of the need for alternative housing described in par. (j) 5. at the time the camp operator submits a COVID-19 safety plan under subd. 1. or 2., the camp operator shall submit with the plan any variance requests required under par. (j) 5.
(L) A camp operator shall maximize the quantity and supply of outdoor air and increase filtration efficiency to the highest level compatible with the existing ventilation systems of the camp's buildings and housing units. Wherever possible, dormitory or barracks style housing without ventilation systems shall use air filtration systems if windows cannot be left open.
SECTION 6 DWD 301.07 (15) (n) is created to read:
DWD 301.07 (15) (n) High-touch areas within all toilet rooms, except in individual family units occupied exclusively by members of the same family, shall be disinfected daily.
SECTION 7. DWD 301.07 (16) (r) and (s) are created to read:
DWD 301.07 (16) (r) High-touch areas within all bathing, laundry, and handwashing facilities, except in family units occupied exclusively by members of the same family, shall be disinfected daily.
(s) Wherever possible, camp operators shall provide lockers or other storage devices for soiled laundry to keep individual worker's clothing separate.
SECTION 8. DWD 301.07 (17) (d) 3m. is created to read:
DWD 301.07 (17) (d) 3m. Kitchen and dining room tables shall be at least six feet apart during shared meals or other events unless individual barriers are placed between workers.
SECTION 9. DWD 301.07 (17) (e) and (f) are created to read:
DWD 301.07 (17) (e) Hand-washing stations and hand sanitizer with at least 60% alcohol and no methanol shall be provided to workers in all cooking and eating facilities.
(f) High-touch areas within all cooking and eating facilities, except in family units occupied exclusively by members of the same family, shall be disinfected daily.
SECTION 10. DWD 301.07 (20) (h), (i) and (j) are created to read:
DWD 301.07 (20) (h) Except for beds in family units occupied exclusively by members of the same family, all beds shall be separated by at least six feet or physical barriers or partitions shall be placed between the beds. Bunk beds may be occupied if camp operators request camp occupants to sleep head-to-toe.
(i) Hand-washing stations and hand sanitizer with at least 60% alcohol and no methanol shall be made available to workers within sleeping facilities.
(j) Except in family units occupied exclusively by members of the same family, high-touch areas within sleeping facilities shall be disinfected daily.
SECTION 11. DWD 301.07 (21) (n) is created to read:
