Washington Farmers Sue State for Relief From 'Arbitrary' COVID Restrictions


When James Alford starts talking about the COVID regulations farmers have to abide by, he starts getting frustrated.

"The problem is that when you read the rules that are written, they weren't written by anyone with an agriculture background," said the president of the Franklin County Farm Bureau. "We're being treated like we're mistreating the workers. We care about our workers."

The frustration with Gov. Jay Inslee's third renewal of statewide emergency rules has boiled over into a lawsuit by the Washington Farm Labor Association and the Washington State Farm Bureau Federation. They filed the complaint Tuesday in Yakima County Superior Court.

They are asking a judge to put a stop to what they say are arbitrary and sometimes dangerous rules.

The suit comes as thousands of farm workers are beginning to apply for the federal H-2A guest worker program.

John Stuhlmiller, the Farm Bureau's chief executive officer, and Dan Fazio, the association's executive director, said they wish a lawsuit hadn't been needed.

"Our goal is to keep workers safe and to keep farmers in business," Fazio said. "What we've been asking is for the state to work with the farm community. We haven't seen that."

Officials in the governor's office declined to comment on the lawsuit since they hadn't been served with the paperwork and legal counsel hadn't reviewed it yet.

In a previous letter that denied appeals from the farm groups, Inslee said state agencies didn't make mistakes in establishing the rules.

"Last growing season, Washington saw 145 outbreaks in agricultural settings and two fatalities in temporary worker housing," he said in a letter. "I am unaware of evidence demonstrating that the risk of COVID transmission in agricultural settings will dissipate before widespread vaccination."

The farm groups dispute the governor's figures.

But Elizabeth Strater with the United Food Workers said they fought with the state early in the spring to have more stringent rules put in place to protect workers.

"It seems like a significant stretch to claim that these rules are arbitrary when state agencies have outlined exactly why the rules are necessary," she told the Herald.

The laborers need those protections or face the danger of dying without medical attention thousands of miles from home, she said.

Problems with rules

The set of emergency rules that were initially adopted in May were renewed in September and again in January.

The farmer groups are particular concerned about the requirement that farmers to be able to get a worker to emergency medical services within 20 minutes of a work site and to a hospital with a ventilator within an hour.

For many farmers who are dozens of miles from the nearest town, getting a laborer to an emergency room in 20 minutes would require excessive driving speeds.

For example, the closest emergency room to the association's farm worker housing in Mesa is Lourdes Medical Center more than 30 miles away in Pasco.

In addition, the rules require workers with COVID or COVID-like symptoms to be checked by a doctor twice a day.

The rule isn't practical, Stuhlmiller and Fazio told the Herald. Rural healthcare systems already are stretched thin dealing with the pandemic, and it would be better to make laborers a higher priority for the vaccines.

The lawsuit also raises issues requiring windows to remain open if housing is not mechanically vented and with a limit of 15 people inside a group shelter.

Unlike other organizations, they said this rule seems to be arbitrary and doesn't take into consideration how much floor space is available or that people may be sleeping in bunks.

Alford pointed out he can be shoulder to shoulder with people on an airplane, but there can't be more than 15 workers riding a farm bus.

Cost of labor

More than 25,000 workers are expected to come into the U.S. as part of the federal H-2A program.

And Alford said it's a highly skilled, career workforce.

At many orchards and other farms, the don't have the luxury of scaling back production in the face of COVID. The same amount of work needs to be done whether there are workers or not, Stuhlmiller and Fazio said.

In one example, Fazio said a small Royal City farm spent $100,000 making safety improvements last year, and brought up 10 workers, about half of what is normally needed.

"He can't operate his orchard with 10 workers," Fazio said. "This is not like a shoe factory where you can close the door and open it back up next year."

Most farmers operate on thin margins, and often find themselves losing money, Alford said.

"We made it through last year carefully," he said.

Risk to workers

The union and the farm groups disagree on the level of risk for farm workers.

Strater said a study by University of California-San Francisco researchers found that food and agricultural workers had the greatest increase in mortality rates compared to other essential workers.

And he wants to protect workers who could die from COVID if they aren't closely being monitored by doctors.

The Washington State Department of Labor and Industries fined an Okanogan company more than $2 million after 24 violations of state rules were linked to the deaths of two workers from COVID.

"It's more onerous to think about the level of risk those workers are taking," said Strater. "When you think about the process of who has to explain that not only is your dad not coming back but you can't even have his body back. H-2A is not just an administrative program, these are human beings."

But sh noted it's also in the workers' best interests for the growers to stay in business.

"We really should be able to find some commonsense collaborative ways to move forward," she said. "That common sense needs to go both ways. We should be able to find a way to protect the lives of those farm workers."

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