Letter to Governor Janet Mills to Protect Farmworkers During COVID-19 Pandemic

April 7, 2020

Delivered by electronic mail

The Honorable Janet Mills Office of the Governor 1 State House Station Augusta, ME 04333

Dear Governor Mills,

We know you are an advocate for Maine businesspeople and for the vulnerable. The organizations listed below urge you to take immediate action to protect Maine’s migrant and seasonal farmworkers in the face of the dire health crisis caused by COVID-19. Farmworkers play a vital role in Maine’s economy as members of the Essential Critical Infrastructure Workforce. They are members of our communities and instrumental in supplying our state and country with fruits, vegetables, and other agricultural commodities. At the same time, these workers are highly vulnerable to COVID-19 illness because they earn low wages, may lack legal status, access to health insurance or medical care and live and work in conditions that make them likely to suffer in silence or go to work sick.

Annually, an estimated 9,324 farmworkers work in Maine—2,191 of whom are migrant workers (2017 Department of Agriculture Census). Many are already here. The majority will live on isolated, rural farms in crowded, dormitory-style housing. Few, if any, have access to health insurance. Besides living, cooking, and bathing in common facilities, they will be transported to and from work in buses or vans in close quarters. They will regularly frequent stores in rural towns to buy groceries, cash checks, and send money to their families. They need and deserve our support and protection. Failure to take proactive steps now could be catastrophic, not just in terms of the human cost, but to rural communities in which farmworkers live, fragile rural health care systems, the state’s billion-dollar agricultural business and everyone it feeds.

In the context of the current pandemic, we need to ensure that no one is put at risk. We recognize and commend the efforts the Governor’s office and state leaders have taken to contain the outbreak. However, while covered by the Families First Coronavirus Response Act’s provisions requiring two week’s (80 hours) paid sick time, most farmworkers will be left behind by the Act’s paid leave provisions, which require that a worker must have been employed for at least 30 days with the employer. Similarly, recent changes to Maine’s unemployment laws to allow payment for certain COVID-19 events may not apply or be delayed for farmworkers whose qualifying events arose in other states. We urge the Governor’s office to ensure that farmworkers are a part of continued pandemic planning. As we rely on critical farmworker labor to maintain our food supply, the state is responsible for their health and wellbeing. Like any other Mainer, farmworkers deserve the same basic rights. These include social distancing, hygiene practices, self-quarantine or isolation, and health care.

Following is a series of suggested guidance that will help to slow the spread of COVID-19 among Maine’s farmworkers and rural communities.

Access to Medical Care

In order to help stop the spread of COVID-19, all farmworkers need to know that all of their medical treatment and expenses related to COVID-19 will be fully covered during the time they are working and residing in Maine, regardless of immigration status or health insurance coverage. This should include assurances that any worker who is tested for COVID-19 will have those costs covered. Workers’ compensation coverage needs to cover farmworkers who contract COVID-19 or must be quarantined due to the virus. Recognizing that most farmworkers come from impoverished rural communities and, in an effort to prevent further spread of the virus beyond Maine borders, Maine should pledge to fully treat all afflicted farmworkers in Maine until all COVID19 symptoms have been fully resolved. Under no circumstances should growers or their agents be allowed to terminate and send home farmworkers who are sick or have been exposed to COVID-19.

• Medical treatment and expenses related to COVID-19 testing and treatment must be fully covered when they are in Maine, regardless of immigration status or health insurance coverage. • Employers must designate an individual to whom workers can disclose symptoms in their own language and who is responsible for coordinating access to medical care including transportation.

• If farmworkers have symptoms, they should be prioritized for COVID-19 testing due to living in congregate housing.

• Workers’ compensation coverage should cover farmworkers with COVID19. These workers are in Maine as part of Maine’s Essential Critical Infrastructure Workforce.

Protections to Ensure Access to Treatment

• Employers must notify farmworkers of their right to paid sick leave as guaranteed by the Families First Coronavirus Response Act so that farmworkers can disclose their symptoms and seek appropriate care instead of continuing to work.

• Farmworkers experiencing symptoms or a diagnosis of COVID-19 must receive care, treatment and housing arrangements that are medically compliant for workers affected by COVID-19.

• Employers must be responsible for providing a separate housing area and separate cooking and bathing facilities for quarantined workers, including a designated individual responsible for coordinating these provisions.

• Workers who contract COVID-19 and cannot work must receive food, water and essential supplies at no charge and ensured access to medical care.

• Recognizing that most farmworkers come from impoverished rural communities and in order to protect the families, communities, and citizens of sending states and countries, Maine should pledge to fully treat all farmworkers in the State of Maine until all COVID-19 symptoms have been fully resolved. Termination and release decisions must be made based on medical advice and Center for Disease Control and Prevention (CDC) recommendations.

• Coordinate with state agencies to ensure worker’s compensation coverage.

• Coordinate with law enforcement to prevent predatory wage-gouging.

• Ensure that farmworkers have access to these protections regardless of whether they are classified as “employees” or “independent contractors.”

Safe Housing

During this crisis, it is crucial that the administration require and ensure that worker housing complies with CDC standards and that such standards are maintained and enforced. Various laws that protect migrant and seasonal workers require compliance with all applicable state and local laws, in addition to federal protections. As the virus unfolds, public health concerns are rapidly evolving, as are the legal requirements of various states and localities. The state agencies tasked with reviewing and licensing farmworker housing must ensure that farmworker housing meets health and safety standards with respect to COVID-19 and have the authority to adopt additional COVID-19 plans prior to licensing any housing. ( See the CDC COVID-19 Preparedness Checklist for Nursing Homes and other Long-Term Care setting for guidance on steps to sanitize living facilities.)

Requiring any person who owns, controls or arranges agricultural worker housing to adopt the following COVID-19 measures would vastly improve the public health and reduce risks to farmworkers:

• Employers must provide housing with a minimum of six feet between beds (current federal regulations require three feet).

• Employers must provide sufficient hand washing supplies at labor camps and in work areas.

• Employers must prove they have a designated individual, a plan and supplies to sanitize worker housing at no cost to the farmworkers.

• Employers must provide assurances that no worker will be forcibly removed from housing prior to end of contract period, quarantine period or restrictive movement period.

• There must be posting in housing of CDC best health practices in the languages of the farmworkers. Employers must provide separate living spaces to workers who are over 60 years old or with underlying health conditions.

Transportation

During the pandemic, it is vitally important that Maine authorities insist on protections for workers’ health and safety during work-related travel. Travelling in groups raises serious health and safety risks both for the farmworkers being transported and the communities they join once in Maine. Oftentimes lacking personal transportation, farmworkers are frequently bussed to work, usually in groups, sometimes in old school buses or vans. Agencies tasked with inspecting and certifying farmworker transportations should ensure that:

• Capacity limits are set for the number of workers transported at one time, taking into account CDC recommendations, including physical distancing, ensuring that workers are not sitting directly next to other workers, that handwashing and sanitizers are available during travel and that vehicles have sufficient ventilation.

• Employers have a plan and supplies to sanitize transportation vehicles.

• There is a posting in vehicles of CDC best health practices in the languages of the farmworkers. • Scheduling of trips to the worksite or town adhere to limits of number of workers in a bus or van at any one time.

Work-Social Distancing

During the crisis, employers must ensure that worksites comply with CDC recommendations and that employers have a plan for preventing and responding to COVID-19. Employers should be required to:

• Define a plan for work crew activity to ensure CDC recommended physical distancing.

• Ensure that work sites have sufficient bathroom and sanitizing stations.

• Attest to a plan for daily sanitization of bathrooms and facilities.

• Comply with all required terms of employment under H-2A nonimmigrant visa agricultural employment program.

We would like to emphasize that farmworkers in Maine should receive the protections and access to treatment detailed above regardless of whether their employer classifies them as “employees” or “independent contractors.” As in other industries, agricultural employers routinely classify their employees as independent contractors. Due to this classification, farmworkers often do not have the full protection and rights granted by federal and state laws concerning labor, discrimination, etc. Without access to these protections, farmworkers cannot advocate for themselves and are further marginalized. We urge you to ensure that farmworkers receive all COVID-19 related worker protections and access to medical treatment regardless of their employment classification.

We also emphasize that farmworkers should receive these protections regardless of immigration status and/or health insurance coverage. Even under normal circumstances, farmworkers often do not feel safe to advocate for their rights and worker protections, or seek appropriate medical care, because of immigration status and lack of health insurance. If we allow those conditions to marginalize farmworkers during this pandemic, they will not receive the protections the state is currently implementing to mitigate the spread of COVID-19.

Protecting the health of farmworkers is essential not only for the workers, but also for the communities in which they live and work. One of the most important ways of slowing the spread of COVID-19 is social distancing. However, social distancing is extremely difficult, if not impossible, in farmworker situations. Travelling, working and living together constantly is the norm for farmworkers. Keeping farmworkers safe and healthy helps to keep everyone safe and healthy.

Thank you for your kind attention. We are happy to answer questions or provide further guidance on any of these recommendations.

Sincerely,

Lisa Tapert, MPH CEO

Maine Mobile Health Program

Ian Yaffe, Executive Director

Mano en Mano

Farmworker Justice

Hispanic Ministry, Portland Diocese

Immigrant Legal Advocacy Project

Maine AFL-CIO

Maine Equal Justice

Maine Immigrants’ Rights Coalition

Maine Mobile Health Program

Mano en Mano

National Center for Farmworker Health

Penobscot Community Health Care

Power in Community Alliances

Southern Maine Workers’ Center

Wabanaki Public Health

cc: Amanda Beal, Commissioner, Department of Agriculture, Conservation and Forestry Nancy McBrady, Director, Department of Agriculture, DACF Jeanne Lambrew, Commissioner, Department of Health and Human Services Laura Fortman, Commissioner, Department of Labor Leana Amáez, Department of Health and Human Services Manager of Diversity, Equity and Inclusion Julie Ann Smith, Executive Director, Maine Farm Bureau Association