Agricultural Employers COVID-19 Update: September 7 Deadline for Reimbursement Applications, Mandatory Paid Leave, Required Outbreak Testing, and More

Aug 28, 2020

By Aviva Kamm and Sarah L. Wixson | Related Practices: Agriculture and Employment

During the past week, Washington State has implemented several additional programs aimed at containing and reducing the spread of COVID-19 in agricultural communities. This update is a must-read for employers in all areas of the agricultural industry. COVID-19 white lettering on red background

Mandatory Paid Sick Leave

A new Proclamation 20-67 - Food Production Workers Paid Leave requires agricultural employers to provide up to 80 hours of paid leave to food production workers who meet criteria between August 18 and November 13, 2020. These dates appear to have been selected to provide paid leave during Washington’s apple harvest.

A detailed summary of employer obligations for paid leave for food production workers can be found in our earlier post: Washington State Mandates Paid Sick Leave for All Agricultural Workers — Even for Companies Exempt from the FFCRA. Employers who wish to be reimbursed for leave paid to workers under this program must begin the application process for reimbursement immediately. The first deadline is September 7, 2020.

Program Guidelines, Sample Leave Request Forms, and Reporting Templates are all available at the Department of Commerce’s website.

Mandatory COVID Testing

  • Individual testing: Agricultural employers must ensure access to COVID testing for symptomatic employees and for other workers, when required by health department officials. Testing must be available within 24 hours. Employers must provide transportation as needed and must designate a person or persons who will be readily identifiable as the testing facilitators.
  • Testing of entire workforce: New rules require an employer to have its entire workforce tested where there is an outbreak, which the rules define as when:

(i)  The local health jurisdiction reports that employer’s workforce has more than 9 positive cases within a 14-day window; OR

(ii)  The local health jurisdiction determines that employer’s workforce has an attack rate greater than or equal to 10% of the workforce within a 14-day window.

If an employer’s workforce is split between two or more different work locations, the 14-day metrics apply to each workplace. For example, if an employer has a workforce of 300, with 150 individuals working in orchards and 150 in a packing house, an outbreak of 15 or more cases at the packing house (10% of the packing house workforce) will trigger the requirement to test everyone who works at the packing house.

The only exception to these workforce-wide testing requirements is if the Department of Health approves an alternate testing strategy.

Read the complete rules in the Agricultural COVID-19 Requirements - General Provisions for All Worksites and Work-Related Functions, as updated August 19, 2020. These testing requirements are in sections (k) and (o) of the document. We also recommend updating the company’s Covid-19 Response Plan to include updated testing protocols and to designate testing facilitators who will arrange access and transportation to testing.

The requirements are made legally binding through Governor Inslee’s Proclamation 20-57.1 - Concerning the Health of Agricultural Workers.

Take note: The rules related to COVID-19 testing use a broader definition of “agricultural employer” than applies under state and federal wage and hour law, but do not apply to meat or other food processing operations. The testing proclamation applies to:

  • orchards, fields, dairies, and all other operations expressly identified in WAC 296-307-006;
  • all fruit-and vegetable-packing warehouses whether owned by the grower or producer or not; and
  • employer- or operator-provided transportation and housing.
  • These requirements do not apply to meat or other food processing operations.

Visits to Worker Housing by Public Health, Medical Providers, and Lawyers

Every year, farm worker advocates conduct site visits to labor camps. These visits are allowed and protected under well-established Washington law. See State v. Fox. Attorneys and advocates have a right to enter into temporary worker housing to meet with workers if the exercise of that right is reasonable.  

Due to the COVID-19 pandemic many temporary worker housing sites have instituted restricted visitor policies. In addition, Washington’s new regulations regarding workers housed in a group shelter setting state that those groups are not to co-mingle with any other group “under any circumstances.” However, that does not mean that advocates can be denied access to temporary worker housing.

Attorneys, like it or not, are deemed “essential.” They should be allowed to enter and meet with workers. Proper grouping , social distancing and COVID-19 protocols (such as meeting outside, one cohort group at a time, and sanitizing between groups) should be followed.  

No one from the company should surveil, photograph, or make lists of who is participating in the meetings. Be prepared after the visit to respond to requests or questions by workers and if something is amiss, be prepared to correct it quickly. 

Contact Aviva KammSarah Wixson, or any member of Stokes Lawrence’s Employment Group for help following the new requirements for agricultural employers.