|Petition Title||Protecting Farmworkers During COVID-19 Pandemic|
|Date Filed||6/5/2020 [Transmittal Sheet]|
|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:
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.
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.
|Comment Period||Ended 7/26/2020 0 comments|
|Agency Decision||Take no action [Transmittal Sheet]|
|Agency Decision Summary||
This petition for rulemaking was considered by the State Health Commissioner on April 8, 2021. After a review of the information provided, wherein no comments were received, the State Health Commissioner on behalf of the Board of Health responds as follows:
Response to Section 1: Proactively, the Virginia Department of Health has coordinated with both private and state agency stakeholders to convey best practices and guidance to mitigate the spread of COVID-19 within agricultural worker communities. This guidance encompasses the concerns outlined in section 1 of the petition; a sample of available guidance is listed below.
Response Section 2-3: In January of 2021, the Virginia Department of Labor and Industry finalized emergency standards to establish requirements for employers to control, prevent, and mitigate the spread of COVID-19. It appears these standards address the concerns of section 2 and 3 of the petition.
Response Section 4-6: The Virginia Department of Health does not hold the statutory or regulatory authority to administer or enforce the rules regarding termination of employment or eviction of H2A/H2B workers. In regards to treatment and costs associated with COVID-19 treatment, the Virginia Department of Health has embarked on a campaign to ensure equitable access to COVID-19 testing and vaccines for all Virginians while focusing on vulnerable populations, such as our agriculture workers. Costs associated with COVID-19 testing or vaccines are typically covered by state and/or federal funds where services are rendered at no cost. It appears the items listed in sections 4-6 fall outside of the scope of authority of the Virginia Department of Health.
|Name / Title:||Kristin Marie Clay / Senior Policy Analyst|
Virginia Department of Health
109 Governor Street, 5th Floor
|Telephone:||(804)864-7474 FAX: ()- TDD: ()-|