Order of the Wisconsin
Department of Workforce Development
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The Wisconsin Department of Workforce Development proposes an order to create DWD 301.09 (2m) (d) and (e), relating to migrant labor and affecting small business.
The statement of scope for this rule, SS 017-25, was approved by the Governor on March 6, 2025, published in Register No. 831A3, on March 17, 2025, and approved by the Department of Workforce Development on March 31, 2025. This emergency rule was approved by the Governor on April 24, 2025. ______________________________________________________________________________________
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 provisions for monitoring heat illness, establishing a heat illness prevention plan, and 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 from heat illness, not just migrant workers engaged in field work. By letter dated September 29, 2023, to DWD Secretary-designee 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 In response to the recommendation of the Chairs, DWD made a germane modification to Clearinghouse Rule CR 23-030 that repealed s. DWD 301.09 (2m) (d) and (e) effective January 1, 2025, that was promulgated into the final rule.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 does not yet have a final rule. The 2025 growing season is now underway and there are no heat protection rules in place that will protect migrant workers in the fields as temperatures climb in the summer months. As suggested by the Chairs in their September 29, 2023, letter, given the absence of a federal rule, 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.
Analysis Prepared by the Department of Workforce Development
Explanation of Statutory Authority.
Section 103.905 (1), Stats. requires DWD to promulgate rules "for the enforcement an implementation of ss. 103.90 to 103.97," Stats., which is the Wisconsin Migrant Labor Law. This authority includes ensuring migrant labor camps and field work are safe for workers. Related Statute or Rules: None
Plain Language Analysis.
Chapter DWD 301 includes requirements for certification of migrant labor contractors; migrant labor work agreements; certification of migrant labor camps; migrant labor camp standards; payment of wages to migrant workers; field sanitation standards; assessment of penalties for violations of the chapter; and notice of migrant labor rights. Clearinghouse Rule CR 23-030 made modifications to many of these requirements, including creating heat illness protection requirements in s. DWD 301.09 (2m) (d) and (e). The objective of the emergency rule is to temporarily reinstate for the 2025 growing season the heat illness protection requirements that were created within former s. DWD 301.09 (2m) (d) and (e), and that were repealed January 1, 2025. Therefore, the emergency rule creates the following requirements for employers of migrant workers in agriculture, which are identical to the repealed requirements that employers were subject to last season: Employers must monitor for heat illnesses and establish a heat illness prevention plan that includes ensuring effective communication during an emergency in the field.
Employers must provide shade and the opportunity to take breaks when temperatures exceed 80 degrees Fahrenheit.
Like the repealed requirements, the above requirements apply to operations in which any number of migrant workers are engaged in hand labor.
Summary of, and comparison with, existing or proposed federal regulations.
As noted in the Finding of Emergency, OSHA is in the process of promulgating a federal regulation for protecting all workers from heat illness. See 89 FR 70698. As stated in OSHA's proposed regulation, there is currently no OSHA standard in effect that regulates heat stress hazards in the workplace. See 89 FR 70698, 70699. With specified exemptions, the proposed OSHA regulation applies to all employees in indoor and outdoor work areas who are subject to OSHA's jurisdiction. One of the exemptions applies to employees exposed to heat for short durations. The emergency rule applies only to migrant workers engaged in outdoor field work but does not include an exemption for short duration exposure. Like the emergency rule, the proposed OSHA regulation requires employers to develop and implement a plan for preventing heat illness and injuries, which must include emergency response procedures. However, unlike the emergency rule, the proposed OSHA regulation includes additional requirements regarding the plan, including a requirement to seek the input of non-managerial employees in developing and implementing the plan and a requirement to review and update the plan annually and whenever certain heat-related illnesses or injuries occur. With certain exemptions, the proposed OSHA regulation requires employers to monitor heat conditions at outdoor work areas using methods specified in the regulation. The emergency rule does not include similar specified requirements. Both the proposed OSHA regulation and the emergency rule include requirements for monitoring workers for signs or symptoms of heat illness and communicating with workers. Both the proposed OSHA regulation and emergency rule include requirements for providing outdoor workers with access to shade or ventilation, cooling, or air conditioning. The proposed OSHA regulation also includes requirements for acclimating workers to heat who return to work after absences of more than 14 days, as well as heat illness training requirements for employees. The emergency rule does not include acclimation or training requirements.
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 this rule, SS 017-25, was held on March 26, 2025. DWD received written comments and heard testimony from Mariah Hennen, representing Legal Action of Wisconsin, in favor of reinstating the heat illness protection requirements as described in the Statement of Scope. Comparison with rules in adjacent states.
Illinois. Pursuant to the Illinois Migrant Labor Law (210 Illinois Compiled Statutes (ILCS) 110), the Illinois Department of Public Health has promulgated rules imposing requirements for the following: camp construction and alteration permits; camp sites and structures, including requirements for sleeping rooms, bedding, and ventilation; water supply; sewage and solid waste disposal; toilet, handwashing, and laundry facilities; showers; food preparation; food storge and eating facilities; electrical wiring; mechanical equipment; fire protection; and communicable disease reporting. See 77 Ill. Admin. Code ss. 935.10 to 935.105. There does not appear to be any statutes or rules specific to heat illness protections for migrant workers in the state. Iowa. Iowa statutes specify requirements for the following: migrant labor camp sites; shelters, including living quarters and sleeping facilities; water supply; toilet, sewage, laundry, handwashing, and bathing facilities; lighting; refuse disposal; insect and rodent control; construction and operation of kitchens, dining halls, and feeding facilities; and safety and fire prevention. ICA s. 138.13. The Department of Public Health promulgated rules on shelters, water supply, waste disposal, bathing facilities, central dining facilities, and safety and fire. Iowa Admin. Code 641.81.1 to 641-81.6. In 2022, the department's duties were transferred to a new Department of Health and Human Services. Iowa does not have state statutes or administrative rules regarding heat illness protections for migrant workers. Michigan. Statutes allow the Department of Agriculture and Rural Development to promulgate rules to protect the health, safety, and welfare of migrant workers and camp occupants. MCLA s. 333.12421 (1). Michigan does not have any statutes or administrative rules relative to heat illness protections for migrant workers.
