WSR 23-10-092
PROPOSED RULES
DEPARTMENT OF
LABOR AND INDUSTRIES
[Filed May 3, 2023, 10:03 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 20-19-050.
Title of Rule and Other Identifying Information: Temporary worker housing (TWH). Chapter 296-307 WAC, Part L, Temporary worker housing (TWH). The department of health (DOH), in conjunction with the department of labor and industries (L&I), is proposing amendments to address the hazards of communicable diseases such as COVID-19 amongst TWH occupants.
Hearing Location(s): On June 20, 2023, at 3:00 p.m., virtual and telephonic hearing. Join electronically https://lni-wa-gov.zoom.us/j/85754270385?pwd=T25qTldCS3UzVi9nU3J5ZG0vQTMzZz09, Password (if prompted) TWhouse@2; join by phone (audio only) 253-205-0468 or 253-215-8782, Meeting ID 857 5427 0385, Passcode 355402565; on June 26, 2023, at 3:00 p.m., at WSU Mount Vernon NWREC, 16650 State Route 536, Mount Vernon, WA 98273; on June 27, 2023, at 3:00 p.m., at Pybus Public Market, 3 North Worthen Street, Wenatchee, WA 98801; and on June 28, 2023, at 2:00 p.m., at Red Lion Hotel Columbia Center, 1101 North Columbia Center Boulevard, Kennewick, WA 99336. A prehearing overview will occur one hour prior to the start of each public hearing. The hearings will begin at the indicated times and will continue until all oral comments are received.
Date of Intended Adoption: July 25, 2023.
Submit Written Comments to: Cynthia Ireland, L&I, Division of Occupational Safety and Health, P.O. Box 44620, Olympia, WA 98504-4620, email Cynthia.Ireland@Lni.wa.gov, fax 360-902-5619, by 5:00 p.m., July 7, 2023.
Assistance for Persons with Disabilities: Contact Cynthia Ireland, phone 360-791-5048, fax 360-902-5619, email Cynthia.Ireland@Lni.wa.gov, by June 12, 2023.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: RCW
70.114A.065 directs DOH and L&I to adopt joint rules for the licensing, operation, and inspection of TWH.
In February 2020, Governor Inslee proclaimed a state of emergency in Washington state as a result of the coronavirus disease 2019 (COVID-19) outbreak in the United States. The virus was confirmed to spread person-to-person. Under the initial March 23, 2020, Proclamation 20-25, Stay Home-Stay Healthy, among other things, the governor enacted various forms of social and physical distancing requirements. This was followed by proclamation amendments adjusting the Stay Home-Stay Healthy order transitioning to a phased-in approach to reopening Washington state, referred to as "Safe Start Washington."
In April 2020, DOH and L&I received a petition for rule making requesting immediate rule amendments to further protect occupants in TWH and cherry harvest camps. In response to the petition and the Governor's Proclamation 20-25, Stay Home-Stay Healthy order, DOH, in conjunction with L&I, adopted emergency rules to protect occupants from COVID-19 hazards in licensed TWH. The last emergency rule expired January 14, 2023.
Throughout the duration of the emergency, DOH and L&I continued to review new information, data, and science as it became available to determine necessary requirements to protect TWH occupants from COVID-19 and similar airborne infectious disease hazards. Each emergency rule provided specific requirements responding to the needs at the time the emergency rule was adopted.
DOH and L&I have assessed the emergency rule requirements, along with input from interested parties, and are proposing amendments for permanent adoption of the following key provisions to address prevention of future outbreaks and the spread of any airborne infectious disease. These key provisions include:
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| • | Requiring updates to the TWH management plan to be submitted to DOH and making the updated plan available to occupants. Requirements for providing the updated plan to occupants in a language or languages understood by the occupants is a current requirement; |
| • | Specific ventilation requirements for all TWH buildings and cherry harvest tents to maximize outdoor air intake and maintaining maintenance logs and other documentation; |
| • | Revisions to the disease prevention and control requirements include: |
| |
| o | Requiring cooperation with the local health jurisdiction and DOH in the investigation and control of cases, suspected cases, outbreaks and suspected outbreaks of communicable diseases or notifiable conditions; |
| o | Changes to reporting requirements; |
| o | Establishing a communicable disease and prevention response plan which includes identifying and isolating occupants with suspect and confirmed cases, and providing medical assistance; and |
| o | Specific training for those responsible for executing the communicable disease and prevention response plan. |
Reasons Supporting Proposal: DOH and L&I are committed to take action to help prevent the spread of communicable diseases in TWH sites. Throughout the duration of the COVID-19 emergency, DOH and L&I continued to review new information, data, and science as it became available to determine necessary requirements to protect TWH occupants from COVID-19 and similar airborne infectious disease hazards. This information provided guidance in determining what requirements are necessary to protect TWH occupants from airborne infectious disease hazards. Based on this information and gauging the effectiveness of the nine emergency rules, DOH and L&I identified permanent amendments to protect occupants in TWH.
Statute Being Implemented: Chapter
49.17 RCW.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: L&I, governmental.
Name of Agency Personnel Responsible for Drafting: Teri Neely, Tumwater, Washington, 360-902-6652; Implementation and Enforcement: Craig Blackwood, Tumwater, Washington, 360-902-5828.
A school district fiscal impact statement is not required under RCW
28A.305.135.
A cost-benefit analysis is required under RCW
34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Cynthia Ireland, Administrative Regulations Analyst, L&I, Division of Occupational Safety and Health, P.O. Box 44620, Olympia, WA 98504-4620, phone 360-791-5048, fax 360-902-5619, email
Cynthia.Ireland@Lni.wa.gov.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW
19.85.025(3) as the rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect.
Explanation of exemptions: See Section 2 below for details.
Scope of exemption for rule proposal:
Is partially exempt:
Explanation of partial exemptions: WAC 296-307-010 Definitions, clarified rule language without changing its effect.
The proposed rule does impose more-than-minor costs on businesses.
Small Business Economic Impact Statement
1. Describe the rule, including: A brief history of the issue; an explanation of why the rule is needed; and a brief description of the amendments that would impose new or additional costs on affected businesses, including small businesses. DOH, in conjunction with L&I, is proposing amendments to chapter 246-358 WAC, Temporary worker housing, and chapter 296-307 WAC, Safety standards for agriculture, respectively, to address the hazards of communicable diseases amongst occupants residing in TWH. RCW
70.114A.065 requires DOH and L&I to adopt rules for the licensing, operation and inspection, and enforcement of TWH.
In February 2020, Governor Inslee proclaimed a state of emergency in Washington state in response to the novel coronavirus disease 2019 (COVID-19) pandemic. Under the initial March 23, 2020, Proclamation 20-25, Stay Home-Stay Healthy, the governor enacted various forms of social and physical distancing requirements. The proclamation identified the agriculture industry as an essential business requiring compliance with the social and physical distancing and sanitation requirements of DOH, L&I, and the Centers for Disease Control and Prevention (CDC) to lawfully operate. Proclamation 20-25 was later amended and ultimately a phased-in, county-by-county approach to reopening Washington was enacted in "Safe Start Washington," issued October 7, 2020. The governor also issued Proclamation 20-57 and 20-57.1, establishing workplace and transportation requirements for COVID-19 specific to the agriculture industry. DOH and L&I responded to the COVID-19 pandemic by adopting a series of nine emergency rules beginning May 18, 2020, to protect occupants from the COVID-19 hazards in licensed TWH. The last emergency rule expired January 14, 2023.
Some of the key provisions in the emergency rules required operators to:
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| • | Educate occupants in a language or languages understood by the occupants on COVID-19; |
| • | Provide occupants cloth face coverings; |
| • | Ensure physical distancing of occupants when at housing sites, which included all cooking, eating, bathing, washing, recreational, and sleeping facilities; |
| • | Adhere to specific ventilation requirements maximizing outdoor intake and maintaining maintenance logs and other documentation; |
| • | Ensure frequent cleaning and disinfecting of surfaces; |
| • | Identify and isolate occupants with suspect and confirmed positive COVID-19 cases; and |
| • | Submit to DOH a revised TWH management plan that demonstrates how the operator will comply with the emergency rule requirements. |
Throughout the duration of the emergency, DOH and L&I continued to review new information, data, and science as it became available to determine necessary requirements to protect TWH occupants from COVID-19 and similar airborne infectious disease hazards. Each emergency rule provided specific requirements responding to the needs at the time the emergency rule was adopted.
DOH and L&I have assessed the emergency rule requirements, along with input from interested parties and propose permanent adoption of the following key provisions to address prevention of future outbreaks and the spread of any airborne infectious disease. These key provisions include:
| |
| • | Requiring updates to the management plan to be submitted to DOH and making the updated plan available to occupants. Requirements for providing the updated plan to occupants in a language or languages understood by the occupants is not changing; |
| • | Specific ventilation requirements for all TWH buildings and tents to maximize outdoor air intake and maintaining maintenance logs and other documentation; |
| • | Revisions to the disease prevention and control requirements include: |
| |
| o | Requiring cooperation with the local health jurisdiction and DOH in the investigation and control of cases, suspected cases, outbreaks, and suspected outbreaks of communicable diseases or notifiable conditions; |
| o | Changes to reporting requirements; |
| o | Establishing a communicable disease and prevention response plan which includes identifying and isolating occupants with suspect and confirmed cases, and providing medical assistance; and |
| o | Specific training for those responsible for executing the communicable disease and prevention response plan. |
2. Identify which businesses are required to comply with the rule using the North American Industry Classification System (NAICS):
Table 1. Summary of Businesses Required to comply to the Proposed Rule
NAICS Code (4, 5 or 6 digit) | NAICS Business Description | Number of businesses in Washington State | Minor Cost Threshold |
111219 | Other Vegetable (except Potato) and melon Farming | 4133 | 3503.04 |
111331 | Apple Orchards | 2325 | 2234.36 |
111332 | Grape Vineyards | 2155 | 421.79 |
111333 | Strawberry Farming | 288 | 447.51 |
111334 | Berry (except Strawberry) Farming | 1064 | 3443.84 |
111335 | Tree Nut Farming | 1433 | 817.20 |
111336 | Fruit and Tree Nut Combination Farming | 252 | 545.96 |
111339 | Other Non-citrus Fruit Farming | 2121 | 755.89 |
3. Identify and analyze the probable costs to comply with the adopted rule:WAC 296-307-16127 TWH management plan.
Description: These sections currently require all operators to implement a written TWH management plan including standard safety protocols and residency rules for maintaining safe and orderly housing. All plans are to be written in English and in the language most commonly spoken by the occupants. The proposed rule amends WAC 246-358-050 and 296-307-16127 to require the operator, when updating a TWH plan, to submit the updated plan to DOH within 10 calendar days after the updated plan becomes effective and to make the updated plan available to occupants.
In addition, the proposed rule provides housekeeping changes which are determined exempt from the cost/benefit analysis under RCW
34.05.328 (5)(b)(iv) as they do not change the effect of the rule. For example, amending the rule language to culturally appropriate verbiage by replacing the phrase "native language" with "language commonly understood."
Cost(s): The anticipated costs to the operator to submit a revised plan to DOH are negligible. The agencies anticipate that most operators will email a copy of the plan directly to DOH. Alternatively, operators could mail or fax the report to DOH.
The anticipated costs to the operator to translate the updated sections of the plan to comply with amendments in subsection (2)(b) is variable based on:
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| • | The degree of the changes made in the revised plan; |
| • | If the operator is using the fillable form template1 provided by DOH; |
| • | How many times an operator will need to update the plan in a given year; |
| • | If an operator is already in compliance with the amendment because subsection (2)(b) currently requires translation. |
For these reasons, the low end of the researched cost range could reasonably be $0.
The researched high end of the cost estimate to translate the document into a language from English is based on a maximum of five pages (2250 words)1 allowing for additional site-specific management plans that are beyond the basic required elements in the two-page fillable form2 that DOH has available in both English and Spanish. The cost range per word is $0.09 to $0.40 depending on the number of words, complexity of the changes, the language pair, and the type of files being translated.3 The most commonly spoken languages in Washington state include Spanish and Spanish Creole, Mandarin, Vietnamese, and Russian.4Cost Range: $0 - $900.00.
The anticipated costs to the operator to provide a revised management plan to occupants is negligible, which could include posting the updated plan.
New WAC 296-307-16146 Ventilation.
Description: For buildings with a mechanical ventilation system, the proposal requires the operator to maintain the existing system to the manufacturer's specifications and perform regular maintenance and filter changes. When fitting a mechanical ventilation system with a filter, the proposed rule requires operators to use a minimum efficiency reporting value (MERV) 13 rated filter or the highest rated filter that the mechanical ventilation system can support. The operator is required to maintain a written maintenance log that includes filter cleaning and replacement. If a building is equipped with a mechanical ventilation system, the operator must instruct occupants to turn it on while the building is occupied and temporarily shut it down when external conditions pose health and safety risks to occupants. If the building does not have a mechanical ventilation system, the operator must instruct the occupants to close all external openings if external conditions could pose a health or safety risk to the occupants.
Cost(s): The anticipated cost to operators is negligible. DOH and L&I expect that operators will follow the manufacturer's operating manual as a regular practice. It is assumed that most operators are already maintaining mechanical ventilation systems in conformance with the proposed rule and that any changes to comply will be negligible.
The filter compartment in a mechanical ventilation unit can vary in perimeter and thickness. Research of the costs of mechanical ventilation system filters focused on the largest filter available (30 x 36) to calculate the costs to comply with the proposed requirement. The most common filters are one to four inches thick. To upgrade from a one-inch MERV 8 filter (lowest rated filter) at $41.54 to a one-inch MERV 13 filter at $49.43 would cost the operator $7.89 per filter. To upgrade from a four-inch MERV 8 filter at $74.90 to a four-inch MERV 13 at $107.26 would cost the operator $32.36 per filter. The frequency at which the filter would need to be replaced depends on the filter thickness and outdoor air conditions and is therefore variable.5 Additionally, it is assumed that some operators are already in compliance with the proposed rule and therefore would not incur any additional costs to upgrade to a higher rated filter. Incremental Cost Range per filter: $0 - $32.36.
It is assumed that the operator would spend two to four hours a year doing routine maintenance and logging the task in a written maintenance record. The average hourly mean wage for an operator in Washington state is estimated at $26.18.6Cost Range: $52.36 – $104.72.
WAC 296-307-16147 Tents.
Description: These sections currently set requirements for the use of tents as TWH for cherry harvest. The proposal requires operators to instruct occupants to close all windows and other outside openings when external conditions could pose a health or safety risk to the occupants.
In addition, the proposed rule provides housekeeping changes which are determined exempt from the cost-benefit analysis under RCW
34.05.328 (5)(b)(iv) as they do not change the effect of the rule.
Cost(s): The anticipated costs are negligible due to the time it would take for operators or occupants to close windows and other outside openings under external hazardous conditions.
WAC 296-307-16190 Disease prevention and control.
Description: This section requires operators to cooperate with local health jurisdictions, DOH and L&I in preventing the spread of communicable diseases. The proposal requires the operators to:
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| • | Cooperate with the local health jurisdiction and DOH in the investigation and control of cases, suspected cases, outbreaks and suspected outbreaks of communicable diseases or notifiable conditions. |
| • | Immediately report to the local health jurisdictions occupants known to have or suspected to have communicable diseases made notifiable by emergency rule or emergency declaration, as well as other specific symptoms of serious illness. |
| • | Implement infection control measures as required by the local health jurisdiction for the care of occupants who have been exposed to other occupants with a suspected or positive case of a communicable disease. |
| • | Conspicuously post education in a language commonly understood by all occupants on the communicable disease related health and safety policies of the TWH. |
| • | Develop a communicable disease prevention and response plan that specifies a process to screen occupants for symptoms of communicable diseases and include isolation and quarantine procedures. |
| • | Provide occupants with access to a thermometer to determine if they have a fever. |
| • | If an occupant is isolated or quarantined, provide access to a phone, information on paid leave and worker compensation, access to medical professionals who offer health care services, and provide food and water at no cost to the occupant. |
| • | Provide transportation for an occupant needing medical attention for a communicable disease or suspected communicable disease at no cost to the occupant. |
| • | Document and provide training to persons responsible for executing the communicable disease prevention and response plan at least annually or when the plan is updated. |
Cost(s): Many of the proposed amendments were part of the series of nine emergency rules adopted during the COVID-19 pandemic. At that time, DOH and local health jurisdictions supplied thermometers to operators at no cost. The thermometers that were supplied to operators during the pandemic were FDA-approved "no contact" infrared forehead thermometers that were purchased for $17.50 each. Similar thermometers cost $21.99.7 The only new expense would be to purchase thermometers if the operator needs to replace the existing thermometers or if a new operator becomes licensed. Cost Range: $0 - $21.99.
The number of occupants needing urgent care due to a communicable disease could vary widely. The researched cost estimate captures the cost range of a single worker, single occurrence. The assumptions on travel and time for a single worker, single occurrence are presented in Table 2.
Table 2. Assumptions for travel distance and time for a single occupant, single occurrence
| Seeking Care Travel* | Urgent Care Appointment** | Operator Travel*** |
| Distance (miles) | Time (minutes) | Time (minutes) | Distance (miles) | Time (minutes) |
Range | One- way | Round-trip | One- way | Round-trip | Average | One- way | Round-trip | One- way | Round-trip |
Low-end | 9 | 18 | 18 | 36 | 55 | 0 | 0 | 0 | 0 |
High-end | 22 | 44 | 30 | 60 | 70 | 30 | 60 | 60 | 180 |
* | Estimated from a study from the office of financial management (OFM) (Washington state).8 |
** | Average urgent care appointment ranges from 55 to 70 minutes.9 |
*** | Estimated through conversations with DOH inspectors. |
Table 3 uses assumptions from Table 2 to calculate the total cost range for a single occupant, single occurrence.
Table 3. Calculations for total cost range for a single occupant, single occurrence
Range | Variable | Occupant Totals | Occupant Cost*,*** | Operator Totals | Operator Cost*** |
Low-end | Miles**** | 18 | 18 x $0.655 = $11.79 | 0 | 0 |
Time | 36 mins + 55 mins = 91 mins | 2 hours x $16.85 = $33.70 | 0 | 0 |
High-end** | Miles**** | 44 | Added to operator | 60 + 44 = 104 | 104 x $0.655 = $68.12 |
Time | 60 mins + 70 mins = 130 mins | 3 hours x $16.85 = $50.55 | 180 mins + 70 mins = 250 mins | 5 hours x $26.18 = $130.90 |
* | Rounded-up to the nearest hour. |
** | High-end operator cost totals assume that the operator goes with the occupant with the appointment (additional time) and takes the worker with them; therefore, miles accrue only once under the operator cost. |
*** | Average mean wage of a worker $16.8510 and average mean wage of a first-line supervisor (TWH operator) of $26.18.11 |
**** | DOH mileage cost based on the estimated rate of $0.655 per mile.12 |
As the estimates produced are per occupant, per occurrence, the total cost in a given year to an operator and occupant are indeterminate. Additionally, it is recognized that the high-end of the cost range is likely an underestimate as an average length of travel was used, but the time estimate for an infectious disease could be considerably longer. Cost Range: $45.49 - $249.57.
Local health jurisdictions, DOH, L&I, and CDC have multilingual flyers that are readily available to the public at no cost for operators to use to educate occupants on communicable disease related health and safety policies. It is estimated that it could take up to two hours (time to locate and request copies) for operators to comply with this proposed amendment. The average hourly mean wage for an operator in Washington State is estimated at $26.18.2 [12]Cost Range: $0.00 - $52.36.
DOH is creating a template for operators to use to assist in the development of a communicable disease prevention and response plan. DOH estimates that it will take approximately two hours for operators to develop the plan using the DOH-created template. The average mean wage of a first-line supervisor (TWH operator) is $26.18.13 Cost Range: $0.00 - $52.36.
The number of occupants that may need to be isolated or quarantined in a particular year due to a communicable disease could vary widely. The estimated cost captures the cost range of a single occupant, single occurrence.
Operators can employ an H-2A classified worker or a worker that is not classified as an H-2A worker. Section 218 of the Immigration and Nationality Act authorizes the lawful admission into the United States of temporary, nonimmigrant workers (H-2A workers) to perform agricultural labor or services of a temporary or seasonal nature.14 H-2A worker housing standards state that, for temporary nonimmigrant workers, the operators will provide three meals a day or have free convenient kitchen space and provide lodging to the workers that they employ. Operators may choose to house workers in transient accommodations such as motels or hotels or have on-site temporary labor housing that conforms to the requirement in chapter 246-358 WAC and chapter 296-307 WAC.15,16 Non-H-2A operators may choose on-site operator owned housing or apartment rentals, but are not required to provide housing for domestic agriculture workers. If the operators choose to provide housing, they must comply with the requirements of chapters 246-358 and 296-307 WAC.
The assumed low-end cost range to isolate or quarantine an occupant of the TWH would be in housing that the operator owns, that the isolated occupant owns a cell phone or that there is a land line available for use, and the operator would only need to supply the occupant with food and water for the day. It is assumed that the high-end cost range to isolate or quarantine an occupant would include securing an additional hotel/motel room, supplying the isolated occupant with a cell phone (daily rate), and supplying the occupant with food and water. The following assumptions apply:
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| • | The cost of a hotel/motel room ranges from $98.00 to $232.00 per day.17 |
| • | The average monthly cost of a cell phone in the United States is $114.00 (equivalent to around $4.00 daily).18 |
| • | The daily cost of food (three means [meals] per day) and water is $59.00.19 |
As the length of time that an occupant or occupants may need to be isolated or quarantined in a given year is variable, the total annual cost is indeterminate. Single Occupant, Single Occurrence, Daily Cost Range: $59.00 - $295.00.
It is estimated that the time to train an individual to execute the communicable disease prevention and response plan will take 30 to 60 minutes of both the operator and the person being trained to execute the plan. The average mean wage of a first-line supervisor (operator/trainer) is $26.18.20 The average hourly mean wage of an entry level agricultural worker is $16.85.21Cost Range: $21.52 - $43.03.
4. Determine whether or not the proposed rule will impose more-than-minor costs on businesses in an industry: While most of the costs of the proposed rule can be estimated, there are some that are indeterminate and variable, as the given multiplier is unknown. The multiplier in Section 3 above is the number of occupants that could need urgent care due to a communicable disease in a given year or the number of occupants that could need to be isolated or quarantined in a particular year due to a communicable disease. Because these are variable and therefore indeterminate costs, the agencies are unable to determine if the costs of the proposed rule are greater than the minor cost threshold ranging from $421.79 for Grape Vineyards and $3,503.04 for Other Vegetable (except Potato) and Melon Farming.
5. If the proposed rule is likely to impose a disproportionate impact on small businesses, identify the steps taken to reduce the costs of the rule on small businesses: The agencies do not anticipate that there is any single factor that makes a business more or less likely to be impacted by the proposed rule since quarantine and care costs of occupants are variable and indeterminate over any given year and that the benefits are public health and safety for all. As such, L&I assumes there is a disproportionate impact on small businesses. L&I reviewed the list of methods for reducing the impact on small businesses under RCW
19.85.030 and found them inapplicable.
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| • | Reducing, modifying, or eliminating substantive regulatory requirements. Reducing, modifying, or eliminating substantive regulatory requirements is not legal or feasible in meeting the objectives and requirements of the Washington Industrial Safety and Health Act (WISHA) and the DOH TWH statute. |
| • | Simplifying, reducing, or eliminating recordkeeping and reporting requirements. Simplifying, reducing, or eliminating recordkeeping and reporting requirements is not legal or feasible in meeting the objectives and requirements of WISHA and the DOH TWH statute. |
| • | Reducing the frequency of inspections. Reducing the frequency of inspections is not legal or feasible in meeting the objectives and requirements of WISHA and the DOH TWH statute. |
| • | Delaying compliance timetables. Delaying compliance is not legal or feasible in meeting the objectives and requirements of WISHA and the DOH TWH statute. |
| • | Reducing or modifying fine schedules for noncompliance. The statues require DOH and L&I to jointly establish a formal agreement that identifies the roles of each of the two agencies with respect to enforcement, and for the agreement to include, to the extent feasible, inspection and enforcement actions by a single agency, and shall include measures to avoid multiple citations for the same violation. DOH and L&I have a memorandum of understanding addressing enforcement as required. For L&I, reducing fine schedules for noncompliance for small businesses. RCW 49.17.180 addresses the civil penalties for WISHA citations and requires L&I give consideration in the penalty assessment to factors including the size of the employer's business. WAC 296-900-14015 (Table 11) sets forth the specific process for penalty adjustments including employer size, with reductions of 20 percent up to 70 percent. |
6. Describe how small businesses were involved in the development of the proposed rule: DOH and L&I communicated on the rule development process via electronic email distribution lists. L&I developed and shared draft proposed rules and circulated them for stakeholder feedback. Small business employers and organizations representing small businesses were involved throughout these processes and DOH and L&I considered their feedback throughout the process.
7. Identify the estimated number of jobs that will be created or lost as the result of compliance with the proposed rule: L&I does not anticipate that the compliance with proposed rules will lead to a significant number of job creations or cuts. Employers will be able to meet the proposed requirements using existing staff without new hires. Similarly, it is unlikely that employers would need to dismiss employees as a result of the proposed rule amendments.
1 | Washington State Department of Health. (accessed April 17, 2023). Temporary Worker Housing (Migrant Farmworker) – Camp Management Plan. https://doh.wa.gov/licenses-permits-and-certificates/facilities-z/temporary-worker-and-migrant-farmworker-housing/camp-plan. |
2 | Washington State Department of Health. (accessed April 17, 2023). Temporary Worker Housing (Migrant Farmworker) – Camp Management Plan. https://doh.wa.gov/licenses-permits-and-certificates/facilities-z/temporary-worker-and-migrant-farmworker-housing/camp-plan. |
3 | The Translation Company. (accessed April 17, 2023). Translation Rated – The Ultimate Guide. https://thetranslationcompany.com/resources/5-facts-buying-translation/translation-pricing.htm. |
4 | Language Network (accessed April 17, 2023). The History of Language in Washington State. https://www.languagenetworkusa.com/blog/the-history-of-language-in-washington-state. |
5 | Filterbuy, Inc. (accessed March 30, 2023). Shop by filter size. https://filterbuy.com/. |
6 | U.S. BUREAU OF LABOR STATISTICS. (accessed March 30, 2023). Occupational Employment and Wage Statistics. Washington State hourly mean wage for a First-line supervisor of Framing, Fishing, and Forestry Worker. https://www.bls.gov/oes/current/oes451011.htm. |
7 | S&S Worldwide. (accessed April 5, 2023). Infrared Contactless Forehead Thermometer. Buy Infrared Contactless Forehead Thermometer at S&S Worldwide (ssww.com). |
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9 | Accessed on April 15, 2023. Solvhealth.com. |
10 | Washington State Department of Labor and Industries. (accessed April 7, 2023). Agriculture Policies – Wages. https://www.lni.wa.gov/workers-rights/agriculture-policies/wages. (Average of the state minimum wage of $15.74 per hour and the adverse effect wage rate for Jan 2023 of $17.97). |
11 | U.S. BUREAU OF LABOR STATISTICS. (accessed March 30, 2023). Occupational Employment and Wage Statistics. Washington State hourly mean wage for a First-line supervisor of Framing, Fishing, and Forestry Worker. https://www.bls.gov/oes/current/oes451011.htm. |
12 | Washington State Office of Financial Management. (accessed April 6, 2023). Per diem rate tables. Per diem rate tables | Office of Financial Management (wa.gov). |
13 | U.S. BUREAU OF LABOR STATISTICS. (accessed March 30, 2023). Occupational Employment and Wage Statistics. Washington State hourly mean wage for a First-line supervisor of Framing, Fishing, and Forestry Worker. https://www.bls.gov/oes/current/oes451011.htm. |
14 | U.S. Department of Labor. (accessed April 14, 2023). H-2A: Temporary Agricultural Employment of Foreign Workers. https://www.dol.gov/agencies/whd/agriculture/h2a. |
15 | U.S. Department of Labor. (accessed April 9, 2023). Fact Sheet #26D: Meal Obligations for H-2A Employers. Fact Sheet #26D: Meal Obligations for H-2A Employers | U.S. Department of Labor (dol.gov). |
16 | U.S. Department of Labor. (accessed April 7, 2023). H-2A Housing Standards for Rental and Public Accommodations. Fact Sheet #26G: H-2A Housing Standards for Rental and Public Accommodations | U.S. Department of Labor (dol.gov) |
17 | Washington State Office of Financial Management. (accessed April 6, 2023). Per diem rate tables. Per diem rate tables | Office of Financial Management (wa.gov). |
18 | Money Saving Pro. (accessed April 7, 2023). What is the average cell phone bill per month in 2023?. What is the Average Cell Phone Bill per Month in 2023? - MoneySavingPro. |
19 | U.S. Department of Labor. (accessed April 9, 2023). Allowable Meal Charges and Reimbursements for Daily Subsistence. Meal Charges and Travel Subsistence | U.S. Department of Labor (dol.gov). |
20 | U.S. BUREAU OF LABOR STATISTICS. (accessed March 30, 2023). Occupational Employment and Wage Statistics. Washington State hourly mean wage for a First-line supervisor of Framing, Fishing, and Forestry Worker. https://www.bls.gov/oes/current/oes451011.htm. |
21 | Washington State Department of Labor and Industries. (accessed April 7, 2023). Agriculture Policies – Wages. https://www.lni.wa.gov/workers-rights/agriculture-policies/wages. (Average of the state minimum wage of $15.74 per hour and the adverse effect wage rate for Jan 2023 of $17.97). |
A copy of the statement may be obtained by contacting Cynthia Ireland, Administrative Regulations Analyst, L&I, Division of Occupational Safety and Health, P.O. Box 44620, Olympia, WA 98504-4620, phone 360-791-5048, fax 360-902-5619, email Cynthia.Ireland@Lni.wa.gov.
May 3, 2023
Joel Sacks
Director
OTS-4438.3
AMENDATORY SECTION(Amending WSR 20-21-091, filed 10/20/20, effective 11/20/20)
WAC 296-307-16103Definitions.
The following definitions apply throughout this chapter unless the context clearly indicates otherwise:
(1)Agricultural employee. Any person who renders personal services to, or under the direction of, an agricultural employer in connection with the employer's agricultural activity.
(2)Agricultural employer. Any person engaged in agricultural activity, including the growing, producing, or harvesting of farm or nursery products, or engaged in the forestation or reforestation of lands, which includes, but is not limited to, the planting, transplanting, tubing, precommercial thinning, and thinning of trees and seedlings, the clearing, piling, and disposal of brush and slash, the harvest of Christmas trees, and other related activities.
(3)Bathing facility. An enclosed area provided by the operator for workers to bathe or shower, and may be located within a family shelter or a common facility.
(4)Building. Any structure used or intended by the operator to be used by workers for cooking, eating, sleeping, sanitation, or other facilities.
(5)Cherry harvest camp. A place where housing and related facilities are provided to agricultural employees by agricultural employers or TWH operators for their use while employed for the harvest of cherries in the state of Washington. Cherry harvest camps are the only TWH site allowing tents.
(6)Common. A shared facility provided by the operator for all workers of the TWH.
(7)Common areas. Housing areas shared or used by one or more families or unrelated individuals.
(8) Communicable disease. An illness caused by an infectious agent that can be transmitted from a person, animal, or object to a person by direct or indirect means including, but not limited to, transmission via an intermediate host or vector, food, water, or air.
(9) Community-based outreach worker. A legal aid representative, a union representative, or a representative from other community-based advocacy organizations.
(10) Community health worker. A frontline public health worker who is a trusted member of or has a close understanding of the community served.
(11)Current certificate (first aid). A first-aid training certificate that has not expired.
(12)Dining hall. A cafeteria-type eating place with food furnished by and prepared under the direction of the operator for consumption, with or without charge, by workers.
(13)Drinking fountain. A fixture equal to a nationally recognized standard or a designed-to-drain faucet, which provides potable drinking water under pressure. A "drinking fountain" does not mean a bubble-type water dispenser.
(14)Dwelling unit. A shelter, building, or portion of a building, which may include cooking and eating facilities, that are:
(a) Provided and designated by the operator as either a sleeping area, living area, or both, for occupants; and
(b) Physically separated from other sleeping and common areas. "Physically separated" means a physical wall separating rooms.
(15)Family shelter. A dwelling unit with sleeping facilities for up to ((fifteen))15 workers that may include toilet or cooking facilities. If services such as bathing, food-handling, or toilet facilities are provided in the family shelter, they are for the sole use of the occupants of the family shelter.
(16)First-aid trained. The person holds a current certificate of first-aid training.
(17)Floor space. The area within a dwelling unit with a minimum ceiling height of seven feet.
(18)Food-handling facility. An enclosed area provided by the operator for workers to prepare their own food, and may be within a family shelter or common facility.
(19)Group A public water system. A public water system as defined and referenced under WAC 246-290-020.
(20)Group B public water system. A public water system that is not a Group A public water system, and is defined and referenced under WAC 246-291-050.
(21)Habitable room. A room or space in a structure used for living, sleeping, eating, or cooking. Bathing facilities, toilet facilities, closets, halls, storage or utility space, and similar areas are not considered habitable rooms.
(22)Health officer. The individual appointed as such for a local health department under chapter
70.05 RCW or appointed as the director of public health of a combined city-county health department under chapter
70.08 RCW.
(23)Livestock. Horses, cows, pigs, sheep, goats, poultry, etc.
(24)Livestock operation. Any place, establishment, or facility consisting of pens or other enclosures in which livestock is kept for purposes including, but not limited to, feeding, milking, slaughter, watering, weighing, sorting, receiving, and shipping. Livestock operations include, among other things, dairy farms, corrals, slaughterhouses, feedlots, and stockyards. Operations where livestock can roam on a pasture over a distance may be treated as outside the definition.
(25) Mechanical ventilation system. A mechanism that actively processes supplying air to or removing air from an indoor space by powered equipment such as motor-driven fans and blowers but not by devices such as wind-driven turbine ventilators and mechanically operated windows.
(26)MSPA. The Migrant and Seasonal Agricultural Worker Protection Act (96 Stat. 2583; 29 U.S.C. Sec. 1801 et seq.).
(27)Occupant. A temporary employee or a person who resides with a temporary worker at the TWH or camp.
(28)Operating license or license. A document issued annually by the department of health.
(29)Operator. A person holding legal title to the land on which the TWH or camp is located. However, if the legal title and the right to possession are in different persons, "operator" means a person having the lawful control or supervision over the TWH.
(30) Outbreak. The occurrence of a condition in an area over a given period of time in excess of the expected number of occurrences including, but not limited to, foodborne disease, waterborne disease, and health care-associated infection.
(31)Recreational park trailers. A trailer-type unit that is primarily designed to provide temporary living quarters for recreational, camping, or seasonal use, that meets the following criteria:
(a) Built on a single chassis, mounted on wheels;
(b) Having a gross trailer area not exceeding 400 square feet (37.15 square meters) in the set-up mode;
(c) Certified by the manufacturer as complying with ANSI A119.5; and
(d) Chapter 296-150P WAC.
(32)Recreational vehicle. A vehicular-type unit that is compliant with chapter 296-150R WAC and primarily designed as temporary living quarters for recreational camping, travel, or seasonal use that either has its own motive of power or is mounted on, or towed by, another vehicle. Recreational vehicles include: Camping trailers, fifth-wheel trailers, motor homes, travel trailers, and truck campers, but does not include pickup trucks with camper shells, canopies, or other similar coverings.
(33)Refuse. Solid wastes, rubbish, or garbage.
(34)Temporary worker or worker. An agricultural employee employed intermittently and not residing year-round at the same TWH site.
(35)((TWH,))Temporary worker housing (TWH) or housing. A place, area, or piece of land where sleeping places or housing sites are provided by an agricultural employer for agricultural employees or by another person, including a temporary worker housing operator, who is providing such accommodations for employees for temporary, seasonal occupancy. TWH includes cherry harvest camps.
(36)Tent. An enclosure or shelter constructed of fabric or pliable material composed of rigid framework to support tensioned membrane that provides ((the))a weather barrier.
(37)WISHA. The Washington Industrial Safety and Health Act, chapter
49.17 RCW, administered by the Washington state department of labor and industries.
(38)Worker-supplied housing. Housing owned by the worker and made available to the same worker on the operator's TWH site. Worker-supplied housing includes recreational park trailers, recreational vehicles, tents, or other structures that meet the requirements of this chapter.
AMENDATORY SECTION(Amending WSR 15-13-092, filed 6/15/15, effective 1/1/16)
WAC 296-307-16127TWH management plan.
(1) ((The))An operator ((licensed under this chapter must))shall develop and implement a written TWH management plan that must include:
(a) A safety plan that includes ((the following)):
(i) Emergency information, including site name and address, emergency contact phone numbers, location of local emergency services, and the department of health bilingual TWH complaint line;
(ii) A plan for contacting a first-aid trained person or emergency services within a reasonable amount of time; and
(iii) Those designated actions operators and occupants ((must))shall take to ensure occupant safety from fire and other emergencies, including the following:
(A) Emergency escape procedures and emergency escape route assignments;
(B) Procedures to account for all occupants after emergency evacuation has been completed;
(C) The preferred means of reporting fires and other emergencies; and
(D) Names or regular job titles of those who can be contacted for further information or explanation of duties under the plan.
(iv) ((Training.))A requirement to designate and train a sufficient number of ((occupants))people to assist in the safe and orderly emergency evacuation of occupants; and
(v) ((Maintenance.))A requirement to regularly and properly maintain, according to established procedures, equipment and systems installed on heat producing equipment to prevent accidental ignition of combustible materials.
(b) ((Camp))Residency rules that describe to the occupants expectations for maintaining a safe and orderly TWH.
(2) The operator shall make available:
(a) A written copy of the TWH management plan, in English and the ((native)) language ((of))commonly understood by the occupants, to the department of health or the department of labor and industries upon request; and
(b) A written copy of the residency rules ((for review)) to occupants, ((in the occupant's native language,))in English and the language commonly understood by the occupants by:
(i) Posting it in a central location ((accessible))visible to the occupants; ((or))and
(ii) Providing individual copies to each occupant if requested.
(3) When changes are made to the TWH management plan, the operator shall submit the revised TWH management plan to the department of health within 10 calendar days of the effective date and comply with the requirements in subsection (2)(b) of this section.
NEW SECTION
WAC 296-307-16146Ventilation.
(1) If the TWH facility or building has a mechanical ventilation system, the operator shall maintain it according to the manufacturer's specifications and operate the system to provide fresh and filtered air. The operator shall have building maintenance staff or mechanical ventilation system contractors set the system to increase ventilation or the percentage of outside air that circulates in the facility or building and verify the following:
(a) The mechanical ventilation system is fully functional;
(b) The mechanical ventilation system filters have a minimum efficiency reporting value (MERV) rating of at least 13. If the mechanical ventilation system does not support MERV 13 filters, use the highest MERV rating filter supported by the mechanical ventilation system;
(c) The mechanical ventilation system's outdoor air intake is maximized. Reductions in outside air intake may be made when external conditions pose health and safety risks to the occupants;
(d) Maintenance checks occur at the beginning of each growing season when preparing buildings to be reopened. Additional maintenance checks must occur based on manufacturer recommendations, usually quarterly or annually;
(e) Ensure written maintenance records are maintained. The written record must include documentation of filter selection, including a selection reason if less than MERV 13 filtration is used, and filter conditions. Written records must be available for review upon request by the state agency representatives;
(f) Filters in any mechanical ventilation system used in a TWH facility or building must be in good repair and replaced in accordance with manufacturer's instructions.
(2) The operator shall instruct occupants in housing with mechanical ventilation systems to:
(a) Turn on mechanical ventilation systems whenever the TWH facility or building is occupied; and
(b) Temporarily shut down the mechanical ventilation system when external conditions pose health and safety risks to occupants.
(3) In buildings without mechanical ventilation systems, the operator shall instruct occupants to close windows and other outside openings when external conditions pose health and safety risks to occupants.
AMENDATORY SECTION(Amending WSR 20-21-091, filed 10/20/20, effective 11/20/20)
WAC 296-307-16147Tents.
(1) Each tent must be constructed to sleep no more than ((fifteen))15 workers.
(2) Tents must provide protection from the elements, insects, and animals.
(3) Structural stability and floors.
(a) Tents and their supporting framework must be adequately braced and anchored to prevent weather related collapse. The operator shall provide documentation of the structural stability ((must be furnished)) to the department of health, if requested.
(b) Floors must be smooth, sloped from a raised center towards the lower outer edges. Floors must be without breaks or holes to provide a hard, stable walking surface. Nonridged flooring supported by grass, dirt, soil, gravel, or other uneven surfaces is not acceptable. Floors that are constructed of wood or concrete must comply with the building code, chapter
19.27 RCW and this chapter.
(c) Floor systems must be designed to prevent the entrance of snakes, rodents, and other nuisances.
(4) Flame-retardant treatments.
(a) The sidewalls, drops, and tops of tents must be composed of flame-resistant material or treated with a flame-retardant in an approved manner.
(b) Floor coverings, which are integral to the tent, and the bunting, must be composed of flame-resistant material or treated with a flame retardant in an approved manner and in accordance with Uniform Building Code, Standard 31.1.
(c) All tents must have a permanently affixed label bearing the following information:
(i) Identification of tent size and fabric or material type;
(ii) For flame-resistant materials, the necessary information to determine compliance with this section and National Fire Protection Association Standard 701, Standard Methods of Fire Tests for Flame-resistant Textiles and Films;
(iii) For flame-retardant materials, the date that the tent was last treated with an approved flame-retardant;
(iv) The trade name and type of flame-retardant used in the flame-retardant treatment; and
(v) The name of the person and firm that applied the flame-retardant.
(5) Means of egress.
(a) Tents must have a primary entrance door. At least one door must lead to the outside of the tent. The door must not be obstructed in any manner and must remain free of any material or matter where its presence would obstruct or render the exit hazardous.
(b) The area designated for refuge must be accessible and remain clear of storage materials or hazards.
(c) If food-handling facilities are provided in tents, or the tent occupancy capacity is for ((ten))10 or more workers, a window allowing access must be located opposite the door and must have a means to open the window or provide an easily opened space, for example, a zipper which opens downward to the floor, must be provided.
(6) Floor area. The operator must:
(a) If food-handling facilities are provided in the tent, ((the operator must)) provide an additional ((twenty))20 square feet of floor space;
(b) ((The operator must))Provide at least ((fifty))50 square feet of floor space for each worker in rooms used for sleeping purposes.
(7) Ceiling height.
(a) A ceiling height of at least seven feet is required in ((fifty))50 percent of the total floor area.
(b) No portion of the tent measuring less than six feet from the flooring to the ceiling will be included in any computation of the floor area.
(8) Windows and ventilation.
(a) The operator shall provide a window area equal to one-tenth of the total floor area in each habitable room which opens at least halfway or more directly to the outside for cross-ventilation and has a minimum of ((sixteen-mesh))16-mesh screens on all exterior openings.
(b) The windows must have weather-resistant flaps, which will cover the window area and a means of fastening the flaps to provide protection from the elements and allow privacy for the ((workers))occupants.
(c) The operator shall instruct occupants to close windows and other outside openings when external conditions pose a health and safety risk to occupants.
(9) Electrical and lighting. The operator shall ensure that:
(a) ((The operator must ensure that))Electricity is supplied to all tents used as habitable room.
(b) ((
The operator must ensure that))
All electrical wiring, fixtures and electrical equipment must comply with the electrical standards of the department of labor and industries regulations, chapter
19.28 RCW, and local ordinances, and be maintained in a safe condition.
(c) ((The operator must ensure that))Each tent used as a habitable room has at least one ceiling-type light fixture and at least one separate floor-type or wall-type convenience outlet.
(d) If cooking is provided in the tent, ((the operator must ensure that)) appropriate wiring and electrical equipment is provided.
AMENDATORY SECTION(Amending WSR 20-21-091, filed 10/20/20, effective 11/20/20)
WAC 296-307-16190Disease prevention and control.
(((1) The operator must report immediately to the local health officer the name and address of any individual in the camp known to have or suspected of having a communicable disease;
(2) The operator must report immediately to the local health officer:
(a) Suspected food poisoning;
(b) An unusual prevalence of fever, diarrhea, sore throat, vomiting, or jaundice;
(c) Productive cough; or
(d) When weight loss is a prominent symptom among workers.
(3))) The operator must:
(1) Cooperate with the local health jurisdiction and department of health in the investigation and control of cases, suspected cases, outbreaks, and suspected outbreaks of communicable diseases or notifiable conditions;
(2) Report immediately to the local health jurisdiction the name and address of any occupant or occupants known to have or suspected of having:
(a) Any communicable diseases made notifiable by emergency rule or emergency declaration;
(b) An outbreak of foodborne or waterborne illness; or
(c) Any occurrence of the following symptoms in two or more occupants:
(i) Fever, diarrhea, sore throat, vomiting, or jaundice;
(ii) Coughing up blood or a cough lasting three weeks or longer; or
(iii) Unexpected weight loss;
(3) Implement infection control measures as required by the local health jurisdiction for care of occupants who have been exposed to other occupants with a suspected or positive case of a communicable disease;
(4) Conspicuously post information regarding the operator's health and safety policies, how to identify symptoms of communicable diseases, to whom to report to if not feeling well, and where and how to secure medical treatment. All information shall be posted in a language commonly understood by the occupants;
(5) Allow entry of community health workers and community-based outreach workers to provide additional information to occupants provided that the community health worker or community outreach worker:
(a) Contacts the operator before visiting the TWH site;
(b) Checks in with designated TWH staff when arriving on the TWH site; and
(c) Wears appropriate personal protective equipment and completes a health screening as required by the local health jurisdiction;
(6) Prohibit any individual with a communicable disease from preparing, cooking, serving, or handling food, foodstuffs, or materials in dining halls;
(7) Develop and follow a communicable disease prevention and response plan that includes:
(a) A process to screen occupants for symptoms of communicable diseases when needed, using symptom lists specified by the local health jurisdiction or department of health;
(b) Providing oral thermometers or "no touch" or "no contact" thermometers for occupants to use as specified by the local health jurisdiction or department of health. Any worker with a temperature of 100.4°F or higher is considered to have a fever;
(c) Contacting the local health jurisdiction immediately as required under subsection (2) of this section and facilitating transportation for any medical evaluation or treatment at no cost to the occupant. If the transportation is not provided by an aid service or ambulance service, the operator shall provide personal protective equipment to individuals providing transportation;
(d) When required by the local health jurisdiction or department of health to quarantine or isolate an occupant to prevent the spread of a communicable disease, the plan must include attestation of the following:
(i) Provide ready access for occupants to telephone service to summon emergency care;
(ii) Provide occupants with information about paid leave and workers compensation;
(iii) Permit access to medical professionals who offer health care services as required by the local health jurisdiction; and
(iv) Provide, at no cost to the occupant, food and water for occupants in isolation or quarantine; and
(8) Provide:
(a) Training for persons responsible to execute the communicable disease prevention and response plan when the plan is updated, or at least annually, if the plan is not updated every year. Information and training must be provided in a manner and language readily understood by the person responsible to execute the plan; and
(b) Documentation of training records must include the name of the person trained and the date that the training occurred. Documentation must be available for review upon request by the state agency representatives.