Farm Worker Safety
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Farming is recognized as a particularly dangerous work environment, with injuries resulting from noise-induced hearing loss, skin diseases, and certain cancers associated with chemical use and prolonged sun exposure. Farm equipment injuries (and fatalities) are of particular concern. The two main laws that regulate workplace safety are discussed below.
Occupational Safety and Health Act
The Occupational Safety and Health Act of 1970 (“OSHA”)[i] regulates workplace environments to require safe working conditions. OSHA seeks to accomplish this goal with regulations targeted to various hazards. On the farm, OSHA regulations concern temporary labor camps,[ii] tractor roll-over protection,[iii] and guarding equipment for various farm equipment and implements, farmstead stationary machinery and cotton gins.[iv] Farm operators are responsible for ensuring compliance with OSHA regulations on field sanitation including hand washing, restrooms and potable water availability applicable to hand labor operations on farms employing in excess of 11 people.[v] Also, regulations cover required safety signage, Storage and handling of anhydrous ammonia, logging operations, and cadmium usage and exposure.[vi]
There are two main farm exemptions. First, immediate family members are not considered employees for OSHA purposes or counted toward the exemption threshold noted below.[vii] Second, small farms are free from OSHA enforcement. OSHA has an interesting history in applying regulation to “small” farms, and the Department of Labor has been prohibited by annual appropriations riders since 1976 from using funds to enforce OSHA regulations on farms employing 10 or fewer employees. OSHA first published a clarification memorandum in 2014 (and continues to publish such a memorandum) confirming that farms with 10 or fewer “non-family” employees are free from OSHA enforcement, provided the farm has not maintained a “labor camp” (e.g. for migrant labor) in the previous twelve months.[viii] The most recent memorandum specifically states that OSHA inspections are “not permitted” on farms of that size, even in the event of an employee complaint of conditions.[ix]
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)[x].
Federal law has regulated the manufacture and use of pesticides since the early twentieth century.[xi] FIFRA authorizes the Environmental Protection Agency (EPA) to tightly regulate the manufacturer of chemicals used in agricultural crop application, requiring manufacturers to provide safety data before a product may be branded and marketed for use. FIFRA’s purpose is to ensure that each manufactured pesticide perform its intended function while not causing unreasonable risk to human health or the environment. To accomplish this goal, the EPA regulates the specific uses, manner of application, protected crops and targeted pests or diseases, worker (applicator) safety, and safe disposal of pesticides. EPA requires manufacturers to summarize all of this information – much of it expressed as prohibited applicator actions – on the labels to pesticide products, raising the colloquialism “The Label is the Law.”
While some pesticides may be sold over the counter, FIFRA regulations restrict the sale and use of most pesticides (known as Restricted Use Pesticides or “RUP”). The State of North Carolina regulates licensing and training for use of RUPs.[xii] RUPs may only be sold by licensed dealers, and may only be sold to EPA licensed applicators. Licensing comes as a matter of required education, and all parties involved in the application are required to undergo annual training, from the farm operator who makes purchasing and storage decisions and directs the application (including timing and area) of the substance, to the applicator who sprays or otherwise applies it. North Carolina’s pesticide law requires that EPA-licensed pesticides be likewise registered with the North Carolina Department of Agriculture and Consumer Services (NCDA&CS). North Carolina’s pesticide law places enforcement of restrictions with the NCDA&CS Pesticide Board.[xiii]
The EPA regulates FIFRA farm worker safety through its Worker Protection Standard (“WPS”) and Certification of Pesticide Applicators Standards (“CAS”) regulations.[xiv] The regulations define an employer as “any person who hires or contracts for the services of workers, for any type of compensation, to perform activities related to the production of agricultural plants, or any person who is an owner of or is responsible for the management or condition of an agricultural establishment that uses such workers.”[xv] Employees in an agricultural operation are classified as “handlers” and “workers,” each with some unique safety requirements. In general, employers are required to ensure that each handler and worker receive prescribed protections, and that handlers mix and apply pesticides in accordance with the label on the pesticide.[xvi]
The WPS prescribes various safety measures including training requirements on exposure protection and entry restrictions to areas where pesticides have been applied.[xvii] Employers are required to post pesticide handling safety signage with specified contents.[xviii] Also, employers may not retaliate against workers for insisting upon adherence to safety measures and provision of proper handling and application protective equipment.[xix]
The regulations allow exemptions to a number of the regulatory requirements for family farms where a “majority of the establishment is owned by one or more members of the same immediate family.” These exemptions include entry restrictions, some specific handler requirements, and display of certain safety information in the workplace.[xx]
[i] 29 U.S.C. §§ 651 et seq.
[vi] Id. various parts.
[vii] For a definition of “immediate family member,” see 29 CFR 780.308 (FLSA regulation)
[viii] OSHA Memorandum July 24, 2014. The 2014 clarification memorandum was also significant in that it distinguished OSHA coverage for grain handling on the farm. The memo specifically included on-farm storage of grain as exempt from OSHA enforcement so long as the grain stored was harvested from that farm. Once a farm accepted grain from another farm for storage, the OSHA would apply to that grain facility.
[x] 7 U.S.C. §§ 136-136y
[xi] FIFRA was actually an upgrade of the 1910 Federal Insecticide Act, 36 Stat. 331.
[xii] North Carolina Pesticide Law of 1971, N.C.G.S. § 143-434.
[xiii] Id. §143-436
[xv] Id. §170.3
[xvi] Id. §170.7
[xvii] Id. §170.406-7
[xviii] Id. §170.409
[xix] Id. ¶170.7(d)
[xx] See Generally 40 C.F.R. §170.601.