You Should Still be Using Best Efforts to Protect Your Farm Workers From COVID
This article is not a substitute for legal advice. See here for the site’s reposting policy.
It’s been a full year since Governor Hogan issued the first state of emergency for Maryland. Fortunately, we are seeing people getting vaccinated against COVID-19. However, COVID will continue to be a risk on our farms for at least the rest of the 2021 season, and using your best efforts to protect your farm workers from COVID still needs to be part of your farm risk management plan. Failing to take steps to protect your farm workers could result not only in illness among your workers, but it may also land you in the middle of a lawsuit.
In January, a U.S. District Court in El Paso, Texas, entered a consent decree in a lawsuit requiring a greenhouse grower to implement new COVID policies to protect all of the people who work there, including migrant farm workers who are employed directly by the greenhouse as well as those hired through a contracting company. A consent decree is basically a settlement agreement ordered by a court to be carried out in order to resolve the dispute without any party having to admit any wrongdoing. Because it is a settlement contained within a court order, if a party doesn’t hold up its end of the agreement, that party can be charged with contempt and the court retains jurisdiction over the matter in order to enforce the terms of the settlement.
The case, Navarrete v. Village Farms, was brought on behalf of an employee, Maria de los Angelese Calzada Naverrete (Navarrete), at Village Farms International’s facility in Monahan, Texas. Navarrete is a permanent resident of the United States. Village Farms is one of the largest producers, marketers and distributors of greenhouse-grown fruits and vegetables in North America. In her Complaint, Navarrete claimed that Village Farms refused to implement “simple, obvious, and cheap” measures to protect its employees’ health and safety during the pandemic. Although Navarette acknowledged that Village Farms did implement rules in response to the pandemic for safety inside the greenhouse and packing facilities such as mandating masks in the vans that shuttled the workers to and from the migrant housing, taking workers’ temperatures before they entered the packing shed and greenhouse, requiring workers to wear masks while working (although not always strictly enforced), holding worker meetings where managers reminded workers about things like social distancing, wearing masks and washing their hands frequently, and having workers eat in shifts in the cafeteria, she asserted that Village Farms’ policies adversely affected the health and safety of workers when they stayed in Village Farms’ migrant housing.
Some of Village Farms’ workers like Navarrete lived 250 miles from the facility, and those workers would stay two weeks at a time at the facility in mobile homes provided by Village Farms. According to Navarette’s Complaint, managers did tell workers who reported COVID symptom to get tested, but the company provided limited resources to assist workers with getting tested. They didn’t help cover the cost of testing nor did they provide transportation to testing sites. Navarette also alleged that managers told sick workers to return to shared housing with shared bathroom and kitchen facilities while they awaited their test results, but the managers didn’t notify anyone, including housemates, when employees got sick or tested positive.
Navarrete asked the court to require Village Farms to quarantine sick workers, notify workers who have been exposed to sick workers, provide access to free testing, and report positive cases to public health authorities. The consent decree requires Village Farms to:
Provide isolation housing for workers who test positive for COVID-19;
Provide separate quarantine housing for symptomatic but unconfirmed COVID-19 cases. Village Farms may no longer send workers who are symptomatic for COVID-19 back to housing shared with healthy workers;
Make “best efforts” to notify all employees who have been exposed to COVID-19 within 24 hours of exposure;
Arrange medical appointments and provide exposed employees with time off work and transportation to get a free COVID-19 test; and
Promptly report positive COVID-19 cases among its workforce to the Regional Director of the Texas Department of State Health Services.
This case demonstrates the importance of making a plan for protecting your farm workers. We are going to be dealing with COVID at least through the rest of this season, but fortunately we’ve learned a lot since last March and we have better guidance from agencies to help us better protect our workers and everyone on the farm. In terms of things that you can do to help protect your workers, there are some simple steps you can take, including:
Encouraging your workers to get vaccinated, and providing assistance to help them get signed up. If it can be done safely, consider assisting your workers with transportation to and from the vaccination site.
Consider creating groups of workers that house, transport, and work together, but stay apart from other groups of workers.
Consider keeping migrant farm workers who live on the farm’s labor camp, migrant workers who live in off-farm housing, and local workers separate from one another to limit potential spread to and from the farm and community.
Understand whether, which and when workers who had COVID symptoms and who test positive for COVID and workers who test positive without symptoms can return to work.
Provide easily-accessible handwashing stations and schedule handwashing breaks every hour if possible. In addition, consider providing hand sanitizers with at least 60-95% alcohol in various locations such as in the field, cooking and eating facilities and sleeping areas. You can request a handwashing station from the Maryland Department of Agriculture (MDA).
The CDC provides guidance for agricultural workers and employers on its website. It also has a Vaccination Communication Toolkit for Essential Workers to educate essential workers about vaccinations, and it includes resources for employers. Maryland provides information about vaccine locations on its covidLINK website.
The University of Maryland Extension has a website with links to download and print materials from MDA that can help you implement best practices to help protect your workers against COVID, including:
And, on a related note, the USDA Agricultural Marketing Services is conducting an online listening session via Zoom on March 19, 2021, from 2 p.m. to 5 p.m. Eastern Time, for people to provide feedback to the agency about the possible development, coordination and implementation of new coronavirus stimulus grant programs funded by the Consolidated Appropriations Act of 2021. This is your chance to let the USDA know what worked and what didn’t work in the previous stimulus grant programs, including the measures to protect workers against COVID-19. Information about the listening session, including how to register and how to submit comments, is available on the AMS website.