The policy alternative is to do nothing, which would leave unchanged rules in ch. DWD 301 that do not align with federal law and state statutes and which may contain inconsistencies and outdated language and lack clarification. Also, if permanent rules in ch. DWD 301 lack adequate best practice requirements for protecting migrant worker health and safety the Department may have to rely on promulgating emergency rules to ensure that protection. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
103.905 Department's duties. The department shall:
(1) Promulgate rules for the enforcement and implementation of ss. 103.90 to 103.97. . . .
(5) Enforce, or cause to be enforced, ss. 103.90 to 103, and cooperate with other officers, departments, boards, agencies or commissions of this state, or of the United States, or of any other state, or of any local government in the enforcement of such sections. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
The estimated time is 120 hours.
List with Description of All Entities that May Be Affected by the Proposed Rule
The proposed emergency rule will affect migrant workers, migrant worker employers, and migrant labor camp operators.
Summary and Preliminary Comparison with Any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
The Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 29 USC 1801, et. seq., and its implementing regulations under 20 CFR Part 500, establish employment standards for migrant and seasonal agricultural workers regarding wages, housing, transportation, health and safety, disclosures, and recordkeeping. MSPA also requires farm labor contractors to register with the U.S. Department of Labor (DOL). The Immigration and Nationality Act (INA), 8 USC 1101 et seq., provides for the temporary admission of nonimmigrant agricultural workers to the United States through the H-2A visa program. Before hiring H-2A workers, employers must apply to DOL for labor certification. DOL's Employment and Training Administration (ETA) has promulgated regulations regarding H-2A labor certifications, including requirements for worker housing. Federal regulations under the MSPA impose requirements for migrant worker housing that depend on the date of construction of the housing. For housing that was completed or under construction prior to April 3, 1980, the housing must comply with either the above ETA regulations or regulations of the federal Occupational Safety and Health Administration (OSHA) regarding temporary labor camps. Housing that was under a contract for construction prior to March 4, 1980 can also comply with either the ETA or OSHA regulations. For housing that was constructed after April 3, 1980, the housing must comply with the OSHA regulations. Likewise, housing that was not under a contract for construction as of March 4, 1980 must comply with the OSHA regulations. See 29 CFR s. 500.132. Regarding COVID-19, the CDC has issued guidance on shared or congregate housing and the CDC and DOL have issued guidance on agricultural workers and employers. OSHA has issued recommendations for additional considerations for workers who reside in communal living arrangements. The CDC, DOL, and OSHA continue to review their guidance for the purpose of making any necessary updates.
Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to Have a Significant Economic Impact on Small Businesses)
The rule is expected to have an economic impact on migrant worker employers and migrant labor camp operators, which may include small businesses, who will have to comply with the rule. Regarding the protection of migrant worker health and safety, the Department expects the long-term net economic impact to be positive because the rule will protect migrant workers from threats such as the spread of COVID-19. Without that protection, there may be significant negative economic impacts on the production of produce.
