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:

1. 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.
2. 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.
3.  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.
4. 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.

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.

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. 

• Meat and Poultry Industry Guidance (VDH) (3/12/2021)
• Summary of Options for Managing COVID-19 Exposed, Asymptomatic Meat and Poultry Plant Workers (3/12/2021)
• Poultry Plant Workers Tested for COVID-19 (VDH) (3/12/2021)
• Poultry Employer Toolkit for COVID-19 (VDH): English, Spanish, Korean, Mandarin Chinese, Arabic, Haitian Creole 
• Meat and Poultry Industry Guidance (CDC)
• Protecting Seafood Processing Workers from COVID-19 (CDC)
• Guidance for Meat and Seafood Processors (CDC)
• Interim Guidance for Migrant Labor Camp Operators and Employees Regarding COVID-19

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.