6/5/2020 1:02 pm Date / Time filed with the Register of Regulations | VA.R. Document Number: R____-______ |
Virginia Register Publication Information
|
Transmittal Sheet: Response to Petition for Rulemaking
X
Initial Agency Notice
Agency Decision
Promulgating Board: | State Board of Health |
Regulatory Coordinator: | Mylam Ly (804)864-7263 mylam.ly@vdh.virginia.gov,joe.hilbert@vdh.virginia.gov,alexandra.jansson@vdh.virginia.gov |
Agency Contact: | Kristin Marie Clay Senior Policy Analyst (804)864-7474 kristin.clay@vdh.virginia.gov |
Contact Address: | Virginia Department of Health Virginia Department of Health 109 Governor Street, 5th Floor Richmond, VA 23219 |
Chapter Affected: | |
12 vac 5 - 501: | Rules and Regulations Governing the Construction of Migrant Labor Camps |
Statutory Authority: |
State: Sec. 32.1-211 of the Virginia Code Federal: n/a |
Date Petition Received | 06/05/2020 |
Petitioner | Legal Aid Justice Center |
Dear Commissioner Oliver: We write to follow up on our petitions of March 30 and May
6 requesting rulemaking and immediate protection for the Commonwealth's farmworker
and migrant worker community during this dire health crisis.
We just entered June. We must act now, as many migrant workers are already here, imminently
arriving, or slated to arrive in the thousands in the coming months.
The Present and Looming Crisis for Farmworkers in the Commonwealth
As we have noted, migrant workers are plainly essential workers, feeding both Virginians
and indeed the world, but they are also highly vulnerable to COVID-19, particularly
in light of their lack of access to medical care, health insurance, and personal transportation;
their incredibly close-quartered living and working conditions (often working shoulder
to shoulder); and their often limited English proficiency (leaving them less likely
to have access to testing or treatment). Many workers are also older, adding additional
risk factors. Additionally, hundreds of these workers will be located on the Eastern
Shore, which has been a hotspot both for Virginia and indeed nationwide. Without further
protections, they are left abandoned while they work to feed us.
The Commonwealth has not Enacted Enforceable COVID Protections for Farmworkers
Despite numerous petitions from our office for enforceable regulations and protections
for farmworkers, we have not seen anything issued beyond recommendations, many of
which are untenable or shift the burden to the workers; none of them can be enforced
against an employer who chooses not to follow them. Recommendations plainly do not
create enforceable protections for workers. That is: None of VDH's suggestions are
mandatory.
Other States are Proactively Taking Enforceable Measures to Protect Vulnerable Workers
By way of contrast, other state governments, in recognition of the need to treat essential
workers as essential, have been implementing measures to protect farmworkers. As we
previously noted, in late April and early May in Oregon, temporary regulations were
enacted by the Oregon Occupational Safety and Health Administration to require farms
to maintain social distancing during work, break and meal periods, and in employer-provided
housing and transportation. Oregon also released $12 million in emergency housing
funds, for which a large portion was earmarked for providing safe housing for migrant
and seasonable farmworkers.
In Wisconsin, in late April, the Wisconsin Department of Health Services issued an
emergency order that mandated agricultural employers to take certain steps to prevent
the spread of COVID-19.
The Commonwealth Can and Should Do More to Protect Farmworkers Although some states
have indeed begun to take measures to protect their most vulnerable workers, many
been derelict in their duties to these workers. Virginia still has the opportunity
to be a leader amongst states to enact enforceable protections.
Virginia law grants the State Board of Health additional powers that may be used to
protect public health during public health emergencies. Governor Northam declared
COVID-19 a communicable disease of public health threat in his state-of-emergency
order in March 2020, which has been extended. VDH, moreover, has broad authority to
issue orders and special regulations needed to protect public health in emergencies.
See Va. Code § 32.1-13. It has the authority to issue mandatory requirements for employers
to protect farmworkers' health, not just recommendations. VDH additionally has broad
oversight over migrant labor camps. See Va. Code §§ 32.1-203 - 32.1-211. Thus, pursuant
to Va. Code § 32.1-13, we again request VDH to promulgate regulations for the following:
Requiring Additional COVID-19 Plans Prior to Issuance of License for Migrant Housing.
VDH must review and license farmworker housing. In addition to its current checklist,
VDH should add additional COVID-19 plans prior to the issuance of any license. 1.
Those requirements should include, but not be limited to: (a) Ensuring that employer
provided migrant housing sleeping arrangements comply with recommended 6 feet apart
social distancing and are highly ventilated. (b) Providing separate living facilities
for workers that are over 60 or have underlying health conditions and have these workers
work within 6 feet of other workers. (c) Requiring designated quarantine sleeping
areas with separate cooking and bathing facilities for quarantined workers. (d) Requiring
proof of sufficient sanitizing and handwashing supplies. (e) Requiring proof of sufficient
masks for all quarantined workers who develop COVID19 symptoms or test positive for
COVID-19. (f) Requiring a designated specific individual responsible for ensuring
workers comply with health and sanitation requirements. (g) Requiring a designated
specific individual to receive reports from workers who may have COVID-19 symptoms
and be able to coordinate and transport such workers to obtain medical services. (h)
Requiring a designated specific individual whose sole responsibility is to care for
quarantined workers and ensure they have sufficient food, that the quarantine is enforced,
and that transportation to medical care is provided.
Requiring Employers to Inform Workers about COVID-19 Concerns. In addition to informing
workers about the terms and conditions of employment when workers are still in their
hometowns, all persons who are recruiting workers for agricultural and migrant employment
in Virginia in 2020 must provide detailed information about the risks of COVID-19.
That information should include how employers will protect their safety while transporting,
housing, and employing them in the United States. Prospective workers should also
be advised that they will not be required to pay for any cleaning and sanitizing products
and the agricultural employer will have an approved health plan for all workers that
includes regular sanitizing of the housing and vehicles and other communal areas.
All prospective H-2A and H-2B employees should also be informed that they will receive
health care at no cost should they develop COVID-19 symptoms and need to be tested,
and how they will be quarantined if they develop symptoms or test positive.
Requiring Employers to Implement COVID-19 Workplace Protections and Plans. Employers
must plan work crew activity to ensure proper distancing to avoid unnecessary transmission
of the disease at work. Additionally, most H-2A worker housing is located in rural
areas, and employers normally bus workers into small towns to purchase groceries and
obtain banking and financial services. Sufficient vehicles must be available such
that workers are not sitting directly next to other workers and sufficient ventilation
exists. Given the recent hoarding of essential supplies and food, it is possible that
small grocery stores could run out of such items and leave workers or members of the
community vulnerable. Moreover, a busload of 50 to 100 or so H-2 workers all entering
stores at busy times for local shoppers could drastically increase the likelihood
of spreading COVID-19. Therefore, advance arrangements must be made with these services
to avoid creating a scarcity of essential food and supplies at grocery stores and
to protect against the spread of the virus in these small communities already stressed
by the impacts of this global pandemic.
Disallowing Terminations Based on COVID-19. Under no circumstances should growers
or their agents be allowed to terminate and send home H-2A and H-2B workers who are
sick with or have been exposed to COVID-19. 5. Disallowing Evictions from Employer
Housing. H-2A employers (and many H-2B employers) control workers' housing, and have,
in the past, revoked workers' access to that housing on short notice. No H-2A or H-2B
workers should be evicted or in any way removed from their housing without prior review
and approval of the Department of Health (H-2A) and written notification provided
to the Mexican Consulate. 6. Ensuring Medical Coverage and Resources for Migrant Workers.
All medical treatment and costs for all COVID-19 related treatment and medical expenses
should be covered by the Commonwealth of Virginia and no worker should be sent home
with any COVID-19 symptoms. In order to help stop the spread of COVID-19, all H-2A
and H-2B workers need to know their medical treatment and expenses related to COVID-19
will be fully covered during the time they are working and residing in Virginia. This
should include assurances that any worker who is tested for COVID-19 will have those
costs covered even if the result is negative for COVID-19. A designated hotline in
Spanish capable of receiving information or messages 24 hours a day should be established
within the Department of Health to allow workers to report potential symptoms and
request medical assistance, and the Departments should have ready access to COVID-19
testing. Workers' compensation coverage needs to cover H-2A and H-2B workers who contract
COVID- 19 or must be quarantined due to the virus. These workers would not be exposed
to the virus if they had not come to Virginia to perform migrant work.
Conclusion
Legal Aid Justice Center reiterates its petition for prompt rulemaking and emergency,
enforceable measures to ensure the protection of all farmworkers, their families and
communities, and the residents of the Commonwealth of Virginia, and asks the Commonwealth
to support our most vulnerable workers in these harrowing times.
Agency Plan
In accordance with Virginia law, the petition has been filed with the Registrar of
Regulations and will be published on July 6, 2020 and posted to the Virginia Regulatory
Town Hall at www.townhall.virginia.gov. Comment on the petition will be accepted
until July 27, 2020.
Following receipt of all comment on the petition, and within 90 days of July 27, 2020,
the matter will be considered by the State Health Commissioner, acting on behalf of
the Board, in order to decide whether to grant or deny the petition or by the State
Board of Health.
Publication Date | 07/06/2020 (comment period will also begin on this date) |
Comment End Date | 07/26/2020 |