FILE — H-2A workers hand plant Sunrise Magic apple trees in a field owned by Valicoff Fruit Company on Tuesday, April 28, 2020, in Zillah, Wash.

Two grower organizations say they will file a lawsuit Tuesday in Yakima County Superior Court against the state Department of Labor and Industries and the state Department of Health over recently revised emergency farmworker rules.

Officials from the Washington Farm Bureau and Wafla said the emergency rules merely roll over policies established at the start of the pandemic last spring and disregard industry feedback, improved understanding of COVID-19 transmission, and best safety practices.

In January, Gov. Jay Inslee rejected the two groups’ appeal to repeal and revise the rules. In a letter to an attorney representing the two groups, Inslee maintained that L&I and the Department of Health did not err in releasing the revised rules.

John Stuhlmiller, CEO of the Washington Farm Bureau, said his organization and other agriculture and commodity groups sent numerous comments to Inslee and are frustrated by the state’s lack of willingness to take that feedback into account.

“We are not getting offered the conversation that has been happening for other industry sectors,” he said.

The groups feel a sense of urgency as about 500 to 1,000 workers a week will begin arriving in the next several months to help with preharvest tasks, said Dan Fazio, executive director of Wafla.

Altogether, the state expects to bring in more than 25,000 H-2A workers this year.

Under the emergency rules, which are in effect through May, growers are subject to several restrictions, including limiting the capacity of farmworker housing to 50% and prohibiting the use of bunk beds unless employers maintain cohort groups that work, travel and live together.

Officials say other rules are also unrealistic for agricultural employers in rural areas. They include a requirement for twice-daily medical visits to farmworkers with COVID-19 symptoms or providing 20-minute access to emergency medical services and one-hour access to an emergency room with a ventilator.

“We’re talking up to an hour or more for many of growers to get to town or a town that has a medical facility,” Stuhlmiller said.

The two groups are asking the court to declare the emergency rules invalid and prevent the two state agencies from enforcing them.

Fazio said he wants new rules that reflect the use of vaccines and other measures.

The two groups, along with others in the agricultural industry, have advocated for a test-and-vaccinate method. Under that approach, H-2A workers would be tested upon arrival in the U.S. There would also be an effort to get agricultural workers vaccinated as quickly as possible.

Agricultural workers over 50 are among the priority groups for the vaccine, but it’s unclear when those workers can be vaccinated.

Fazio maintains that once workers are vaccinated and separated into cohorts, restrictions should be lifted over time.

“There’s no off-ramp,” he said. “What we need is the off-ramp.”

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