The state Department of Labor and Industries (L&I) and the Department of Health have approved an emergency rule for H-2A worker housing that provides flexibility sought by farmers to prevent the spread of COVID-19. Their standards were then promptly upheld by a Skagit County Superior Court judge in a May 14 ruling regarding a lawsuit filed against the state agencies, concluding that they had practiced due diligence in adopting the housing regulations.
For agricultural industry members, the new rule avoids what some previously warned would have been “season-ending” for many farmers by severely restricting the available housing space for guest workers and consequently leaving much of the harvest to rot.
“This is one thing that could have pushed a lot of farms out of business,” Save Family Farming Communications Director Dillon Honcoop said. He added that the new rule is “something that will allow harvest to move forward. It’s not going to be easy…but it falls within the realm of possibility.”
Many farmers rely on bunk beds to provide housing for guest workers. However, L&I’s initial draft rule released April 23 would have prohibited use of the top bunk, effectively cutting the housing supply in half. Under the final rule, the entire bunk bed can still be used through a “group shelter” approach in which up to 15 workers eat, sleep and travel together and separate from other workers.
Washington Tree Fruit Association (WTFA) President Jon DeVaney told Lens the new rule “will give us some flexibility to better utilize the available housing capacity.”
“If you eat, sleep and work together your risk of transmission is lower,” Washington Farm Bureau (WFB) Government Relations Associate Director Bre Elsey said. “It mitigates some of those risks as far as communicable transmission.”
She added that although the final rule is “not an option that will work for everyone,” it’s a “significant improvement…than what we faced initially. It allows agriculture to also operate, which allows us to provide food for our neighbors’ tables. The devastation that would have resulted from that would have not been recoverable. The citizens of Washington would have experienced…potential food shortage.”
“There’s a limited window when things are ready to be harvested,” Devaney said. “(There was) potential for a lot of losses there.”
On May 14 a Skagit County Superior Court judge ruled against Familias Unidas Por La Justica and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) in a lawsuit against DOH and L&I regarding the temporary housing rules, though the judge has yet to rule on transportation and workplace rules.
Both Honcoop and Elsey said that many of the safety regulations mandated by the state agencies have already been adopted by farmers.
“There is not a farmer out there that could risk losing their entire harvest over negligible safety practices,” Elsey said. “You won’t find anybody who is more cognizant of the affects that that would have than a farmer. If they weren’t being safe, the potential for transmission comes right into their own family home.”
Skagit County Superior Court is not expected to hold another hearing on the lawsuit, as Governor Jay Inslee is expected to issue a proclamation on workplace and transportation rules.