Farmworkers’ union sues state agencies over COVID-19 emergency rules

A Washington farmworkers’ union has sued two state agencies, asking a Thurston County Superior Court judge to strike down emergency rules on temporary farm worker housing as “contrary to scientific evidence.”

“It took the state 50 days to put out rules that still do not protect farm workers — 50 days. Enough is enough,” said Ramon Torres, president of the petitioner, Familias Unidas por la Justicia.

“The state has to realize that without strong protections, the entire industry will crumble. If we don’t fight for farm workers and hold the agencies accountable, who will? We will keep fighting until the agencies pass rules that actually protect farm workers from COVID-19,” Torres said.

The lawsuit asks the court to repeal parts of the emergency housing rules adopted by the Department of Labor & Industries and the Department of Health, which are the respondents in the lawsuit. Also, the farmworkers’ union asks the court to order the state to approve rules that provide workers with more protections.

Washington agricultural employers plan to bring in approximately 30,000 farm workers from rural areas of Mexico under the non-immigrant, temporary H-2A work visas from the federal government. Many work in Yakima County, which has the highest COVID-19 infection rate in the state.

The lawsuit states that none of the H-2A workers will be tested for COVID-19 before leaving their villages in Mexico, won’t be tested after a lengthy bus ride to the U.S. border, nor will they be tested after being bused from the border to Washington.

Farm worker housing typically is located on farms with labor camps that consist of dormitory-style housing where several hundred workers occupy tight quarters, with about 50 square feet per person, according to the lawsuit.

Operators use bunk beds because they can house more workers in less space, said Andrea Schmitt, an attorney with Columbia Legal Services. The nonprofit law firm is representing Familias Unidas, along with the Seattle law firm of Barnard Iglitzin & Lavitt.

Familias Unidas, the United Farm Workers, and other groups sent a plea on March 19 to Gov. Jay Inslee for emergency orders to protect farm workers in housing, transportation, and workplaces. Nearly a month later, Familias Unidas and the United Farm Workers filed a lawsuit in Skagit County Superior Court to compel L&I and the health department to adopt emergency rules.

On May 11, Oregon implemented emergency housing rules that banned the simultaneous use of upper and lower bunks for unrelated workers.

Under Washington’s emergency rules, which took effect on May 18, there is an exception to the prohibition on having farm workers sleep on both levels of a bunk bed.

Operators can do so as long as workers are assigned to groups of up to 15 who are not allowed to have contact with other workers — a concept referred to as group shelters or cohorts. The workers must sleep head to toe.

Schmitt, the attorney with Columbia Legal Services, said she expects many growers to use that option, which the lawsuit asserts is a “loophole.”

“That unequal treatment is exacerbated by the fact that H-2A employers can unilaterally choose to designate which employees receive less protection. There is no provision in the rules that permits a worker to object to such arrangements, no requirement that workers be told in advance that they will be put in higher-risk housing, no anti-retaliation protections for workers who do speak up, and no proactive on-the-ground governmental oversight,” she wrote in a May 20 letter to Inslee.

At a May 28 press conference to announce additional rules to protect farm workers from COVID-19, Inslee and Joel Sacks, director of the state Department of Labor & Industries, talked about what they said were the benefits of the group shelters option.

“This model, if it’s adhered to properly, can tremendously reduce the risk to agricultural workers because they are only exposed to a smaller group of people that can reside and travel and work together,” Inslee said.

Rosalinda Guillen is a community organizer with Community to Community Development, a Bellingham-based farm worker organization which supports Familias Unidas.

She said it is offensive that the state thinks it can group strangers into temporary families because they are Latinx, providing fewer safety protections under the group shelters option.

“What they are saying is that our individual lives are worth sacrificing for industry profits. It’s acceptable to them to lump us together and subject us to the disease because those getting sick, and who may die, are poor brown people,” Guillen said.

The lawsuit also asks the court to strike down the agencies’ emergency rules that Columbia Legal Services said do not provide enough space to allow people to socially distance in housing, permits the use of thin plastic sheeting as “protective barriers” between beds, does not require proper ventilation, and fails to assure physical distancing in common cooking areas.

Reached for comment, Inslee spokesman Mike Faulk said the governor’s office legal counsel is reviewing the lawsuit.

Tim Church, an L&I spokesman, said in an email that the agency understands the concerns of agricultural workers regarding the new coronavirus.

“L&I has been working non-stop with the Governor’s Office, other state agencies, worker advocates, and the farm industry to assess the challenges created by agriculture work, and develop specific requirements to protect workers. We have some of the strongest coronavirus safety requirements in the country, and we expect workplaces to follow them to protect workers during this very difficult time,” Church said.

Jessica Baggett, a spokeswoman for the state Department of Health, said the agency could not comment on the lawsuit.

“Agricultural work presents unique challenges for public health because the work is seasonal and fast-paced. Growers often face housing shortages for their employees. Many workers are Latinx, Spanish-speaking, or immigrants, who live and work in rural communities; access to linguistically and culturally appropriate health care and information is often not available.

“COVID-19 has highlighted and intensified existing health inequities already faced by these communities,” she added.

Jon DeVaney, president of the Washington State Tree Growers Association, said federal and state officials have designated food production, including the harvest of tree fruit, as essential both to the economy and the common good.

“To help that happen while still ensuring the safety of farmers and their employees, the state developed a clear and precise list of safety regulations for the workplace and worker housing. Our members are following, and in many cases exceeding, those guidelines. And we will continue to follow any changes in guidelines in the future,” he said.

The lawsuit, which was filed Thursday, has been assigned to Judge John Skinder of Thurston County Superior Court.

This story was originally published June 7, 2020 at 5:45 AM with the headline "Farmworkers’ union sues state agencies over COVID-19 emergency rules."