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 (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 003-22, was approved by the Governor on January 13, 2022, published in register No. 793A3, on January 18, 2022, and approved by the Department on January 28, 2022. This emergency rule was approved by the Governor on February 18, 2022.
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 disease caused by the SARS-CoV-2 virus. 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. EmR2014 revised ch. DWD 301 to temporarily impose various protections for migrant workers in camps, fields, and employer-provided transportation. The protections were based on the public health information that was then available from DHS and the U.S. Centers for Disease Control and Prevention (CDC). After extensions by the Joint Committee for Review of Administrative Rules (JCRAR), EmR2014 expired on March 8, 2021. Because the COVID-19 pandemic continued to threaten public peace, health, safety, and welfare, the Department consulted with DHS and interested stakeholders and promulgated another emergency rule, EmR2109, on March 19, 2021. EmR2109 did not duplicate EmR2014 but was based on more recent public health guidance related to the benefits of wearing face coverings, distancing, and otherwise preventing the transmission of COVID-19. After extensions by JCRAR, EmR2109 expired on December 13, 2021. The Department has published Statement of Scope SS 004-22 for a permanent rule with objectives that include exploring requirements for ensuring that employers follow best practices in protecting the health and safety of migrant workers in camps, fields, and employer-provided transportation. However, the Department estimates that over 4,400 migrant workers will reside in employer-provided housing in Wisconsin during 2022. A majority of those migrant workers will arrive in early spring and stay through the fall and the Department will not be able to promulgate a permanent rule in time to protect those migrant workers. Moreover, as the virus mutates, new variants of concern, such as Delta and Omicron, continue to be detected in Wisconsin, Therefore, a new emergency rule that is focused on COVID-19 is necessary for the immediate 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
The emergency rule requires migrant camp operators to make reasonable efforts to separate exposed workers from other camp occupants. The rule defines "exposed worker" as a migrant worker who has been in close contact with either an individual who has tested positive for COVID-19 or an individual exhibiting COVID-19 symptoms who has not tested negative for COVID-19. The emergency rule refers to the separation of exposed workers from other camp occupants as quarantine. The emergency rule also requires a second type of separation, as migrant camp operators must effectively separate from all other camp occupants the following: 1) workers who have tested positive for COVID-19 and 2) workers exhibiting COVID-19 symptoms who have not yet tested negative for COVID-19. The emergency rule refers to this second type of separation as isolation. The emergency rule requires both types of separation to be in accordance with DHS guidance. The emergency rule imposes other requirements related to quarantining and isolating migrant workers and allows migrant workers residing in certain family housing or living units to opt to remain in those units.
The emergency rule also requires migrant camp operators to clean and then disinfect high-touch areas within bathing, laundry, handwashing, cooking, eating, and sleeping facilities and toilet rooms, and, wherever possible, to separate beds by at least six feet. The emergency rule allows camp operators to use bunk beds if camp operators request that occupants sleep head-to-toe. Additionally, in central mess facilities, the emergency rule requires camp operators, wherever possible, to space kitchen and dining room tables at least six feet apart during shared meals or other events. 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. In addition, the emergency rule imposes ventilation requirements for camp buildings and housing units.
Further, the emergency rule requires camp operators and employers to make available for workers face masks 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 cleaned and then disinfected daily. However, a transport vehicle must be cleaned and then disinfected before the next trip if the vehicle is used to transport either a worker who has tested positive for COVID-19 or a worker exhibiting COVID-19 symptoms who has not tested negative for COVID-19. The emergency rule also requires employers to provide separate transportation for workers exhibiting COVID-19 symptoms who have not tested negative for COVID-19.
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 quarantine and 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 and recommended booster shots. 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, quarantine, or isolation. The emergency rule also allows employers to make certain housing changes necessary to quarantine or 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 hearing on the Statement of Scope for the emergency rule, SS 003-22, was held on January 26, 2022. Legal Action of Wisconsin's Farmworker Project Program Manager and Legal Director submitted a written comment stating that a new emergency rule focused on COVID-19 "is critically necessary for the immediate preservation of public health, safety, and welfare of Wisconsin's migrant and seasonal farmworkers." The president of the Midwest Food Products Association (MWFPA) appeared at the preliminary hearing and submitted the following written comments on the emergency rule. The MWFPA president stated that "it is crucial that the interconnected nature of the employer-provided housing, workplace, and employer-provided transportation elements of the proposed rule work in concert with one another" and cited MWFPA members' experience in dealing with several COVID-19 strains and providing improved safety and protection for workers in employer-provided housing, the workplace, and employer-provided transportation. The MWFPA president also stated that "adopting too exacting of standards to compel the need for additional housing in rural areas may result in workers being forced to live even further from their place of work," which "would place even greater reliance on employer-provide transportation and put further pressure on the workers themselves, as each day will require additional time to travel to and from work." In addition, the MWFPA president stated that "limits on the capacity of employer-provided transportation would have an adverse impact on the ability of employers to transport workers to and from work as well as the errands that workers seek."
Agency response: The Department acknowledges the concerns of the MWFPA president and appreciates the efforts undertaken by MWFPA members to provide improved safety and protection for workers in the workplace and employer-provided housing and transportation. To avoid affecting the availability of housing in rural areas, the emergency rule does not require all tables in central mess facilities and beds in non-family units to be separated by six feet. Instead, the emergency rule requires six-foot separation "whenever possible," which the Department believes will give camp operators in rural communities more flexibility regarding their housing. Likewise, the Department believes that the emergency rule will not adversely affect employer-provided transportation because workers are required to sit six feet "wherever possible" and the emergency rule does not otherwise limit the number of workers transported in a vehicle.
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. The emergency rules were originally in effect for 6 months, but on August 27, 2021, the Michigan governor extended the rules to remain in effect until December 31, 2021.