STATEMENT OF SCOPE
Department of Workforce Development
Rule No.
DWD 301
Relating to
Heat illness protections for migrant workers
Rule Type
Emergency
Finding of Emergency
The Department of Workforce Development (DWD) seeks to promulgate a new emergency rule in ch. DWD 301 for protecting migrant workers from heat illness. DWD promulgated permanent Clearinghouse Rule CR 23-030, effective February 1, 2024, creating s. 301.09 (2m) (d) and (e), which included the following provisions: 1) training workers and supervisors to monitor for heat illness; 2) establishing a heat illness prevention plan; and 3) providing shade and the opportunity to take breaks when temperatures exceed 80 degrees Fahrenheit. The provisions applied to operations in which migrant workers are engaged in field work. The federal Occupational Safety and Health Administration (OSHA) was expected to promulgate a rule for protecting all workers, not just migrant workers engaged in field work from heat illness. By letter dated September 29, 2023, to DWD Secretary Pechacek, the Chairs of the Senate Committee on Labor, Regulatory Reform, Veterans and Military Affairs and the Assembly Workforce Development and Economic Opportunities Committee recommended sunsetting the heat illness prevention requirements in CR 23-030, effective January 1, 2025. In that same letter, the Chairs noted that, if OSHA withdrew or had not finished promulgating its regulations, DWD could file a permanent or emergency rule before the 2025 growing season gets underway. In response to the recommendation of the Chairs, DWD made a germane modification to Clearinghouse Rule CR 23-030 that repealed s. DWD 301.09 (2m) (d) and (e) effective January 1, 2025, that was promulgated into the final rule. On August 30, 2024, OSHA issued a proposed rule regarding heat injury and illness prevention in outdoor and indoor work settings. See 89 Fed. Reg. 70698. On November 29, 2024, OSHA extended the public comment period for that proposed rule to January 14, 2025, with an informal public hearing on the proposed rule scheduled for June 16, 2025. See 89 FR 94631. On January 20, 2025, President Trump issued a memorandum for heads of executive departments and agencies regarding a regulatory freeze pending review. See 90 FR 8249. The memorandum prohibits the proposal or issuance of any rule until a department or agency head appointed by President Trump reviews and approves the rule. DWD intends to promulgate a permanent rule to align with OSHA regulations if they are implemented; however, given the comment period has been extended to June, and directives provided in President Trump's memorandum, OSHA will not have a final rule in time for the upcoming 2025 growing season. Therefore, an emergency rule is needed for the 2025 season to protect those migrant workers from heat illness and thereby immediately preserve the public peace, health, safety, or welfare.
Detailed Description of the Objective of the Proposed Rule
The objective of the proposed emergency rule is to temporarily reinstate the heat illness protection requirements for the 2025 growing season, created within former s. DWD 301.09 (2m) (d) and (e), that were repealed January 1, 2025.
Description of Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Clearinghouse Rule CR 23-030 made revisions that are necessary to better align its requirements with federal law and ss. 103.90 to 103.97, Stats. DWD repealed the heat illness protection requirements for migrant workers participating in field work created in Clearinghouse Rule CR 23-030, under s. DWD 301.09 (2m) (d) and (e), effective January 1, 2025, in anticipation of potential OSHA regulations for heat injury and illness protection in outdoor and indoor work settings. An OSHA regulation will not be finalized in time for the 2025 growing season. Thus, there will be no protections in place for the 2025 season if an emergency rule is not promulgated. The new policies in the proposed DWD emergency rule are identical to the requirements that were formerly in effect from February 1, 2024, through January 1, 2025. As noted above, during legislative review of Clearinghouse Rule CR 23-030, the Chairs of the Senate Committee on Labor, Regulatory Reform, Veterans and Military Affairs, and the Assembly Workforce Development and Economic Opportunities Committee stated that if OSHA did not finish its regulations, DWD could file an emergency rule before the 2025 growing season gets underway. The policy alternative is to do nothing.
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 40 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
OSHA's notice of proposed rulemaking for heat injury and illness prevention in outdoor and indoor work settings states that OSHA's proposed rule would require employers to create a heat injury and illness prevention plan to evaluate and control workplace heat hazards. The proposed rule would also establish requirements for identifying heat hazards, implementing engineering and work practice control measures at or above an initial heat trigger and a high heat trigger. In addition, the proposed rule would include requirements for developing and implementing a heat illness and emergency response plan, providing training to employees and supervisors, and retaining records. Subject to some exceptions, OSHA's proposed rule would apply to all employers conducting outdoor and indoor work in all general industry, construction, maritime, and agriculture sectors. However, in the notice of proposed rulemaking, OSHA sought input on alternatives and potential exclusions. See 89 Fed. Reg. 70698 (August 30, 2024).
Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to Have a Significant Economic Impact on Small Businesses)
The proposed emergency 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 emergency rule. However, the impact in reviving this policy is expected to be minimal. Migrant worker employers and migrant labor camp operators were required to comply with heat illness protection requirements during the 2024 growing season and the emergency rule reinstates those same requirements for the 2025 growing season. 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 heat illness during the 2025 growing season. Without that protection, there may be significant negative economic impacts on the production of produce.
