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.
Summary of factual data and analytical methodologies
Emergency Order # 25, ch. DWD 301, emergency rules EmR2014 and EmR2109, 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 Definitions. In this chapter:
(1) "COVID-19" means the disease caused by the SARS-CoV-2 virus.
(2) "Exposed worker" means a migrant worker who has been in close contact with an individual who tested positive for COVID-19 or with a symptomatic individual who has not tested negative for COVID-19.
(3) "Family unit" means a one-family housing unit or a family living unit that is part of a multifamily unit.
(4) "Isolate" means to separate individuals who have tested positive for COVID-19 and symptomatic individuals who have not tested negative for COVID-19 from other individuals.
(5) "Quarantine" means to separate an exposed workers from other individuals.
(6) "Symptomatic individual" means an individual exhibiting symptoms of COVID-19.
(7) "Symptomatic worker" means a symptomatic individual who is a migrant worker.
(8) "Tested negative for COVID-19" means that a viral test has determined that an individual was not infected with the SARS-CoV-2 virus at the time of the test.
(9) "Tested positive for COVID-19" means that a viral test has determined that an individual was infected with the SARS-CoV-2 virus at the time of the test.
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, quarantine, 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, quarantine, 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, quarantine, 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 quarantine or 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 (11) (j), (k) and (L) are created to read:
DWD 301.07 (11) (j) 1. Except as provided in subd. 2., in accordance with current guidance of the department of health services, a camp operator shall do all of the following:
a. Make reasonable efforts to effectively quarantine exposed workers from all other camp occupants. For purposes of this subd. 1. a., "effectively quarantine" includes providing each worker with a private bathroom, sleeping area, and cooking and eating facility. If a camp operator cannot effectively quarantine exposed 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 .
b. Effectively isolate workers who have tested positive for COVID-19 and symptomatic workers who have not tested negative for COVID-19 from all other camp occupants . 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.
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 isolated and quarantined workers who are 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 quarantine 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.
