H-2A Workers

FILE — H-2A guest workers wait in line for dinner at the former Fairbridge Inn & Suites at 1507 N. 1st St. in Yakima on Friday, Aug. 3, 2018. Owner Rob Vallicoff offers 230 rooms for workers and 85 rooms for hotel guests.

Growers will continue to be able to use bunk beds in farmworker housing under a ruling last week from Thurston County Superior Court.

Judge John C. Skinder ruled Friday that the state Department of Labor and Industries and the state Department of Health did not act in an “arbitrary and capricious manner” when issuing emergency rules for farmworker housing in mid-May.

Familias Unidas por la Justicia, a Burlington-based farmworker union, filed the lawsuit against the state agencies in early June, arguing that the state’s emergency rules were contrary to the best available science.

Those rules, issued May 13, allow the use of bunk beds if there are shelter groups of 15 workers or fewer who would travel, work and eat together. The union is opposed to any use of bunk beds, arguing their use makes workers more susceptible to coronavirus transmission.

Skinder said the state agencies had the difficult task of balancing various interests, including those of farmworkers and industry officials, while responding to continually changing information regarding COVID-19.

“I cannot find that the state acted in an arbitrary and capricious manner,” he said.

In expressing opposition to the use of bunk beds, Familias Unidas referred to recommendations from epidemiologists Drs. Anjum Hajt and Catherine Karr from the University of Washington. The pair, citing several studies, recommended limiting farmworker occupancy to two people to a room of 150 to 200 square feet to reduce transmission. If that is not possible, they recommended beds that are separated by at least 6 feet.

“We are obviously disappointed. We believe that the rules don’t protect farmworkers as well as they should,” said Andrea Schmitt, staff attorney for Columbia Legal Services, which represented Familias Unidas. “But we knew the legal standard was difficult; it is an extraordinarily high standard.”

Labor and employment firm Barnard Iglitzin & Lavitt LLP also argued on behalf of Familias Unidas.

Elliott Furst, which represented the state agencies, said there were no studies that explicitly banned bunk beds.

Furst also noted that Familias Unidas did not issue public comments on the draft version of the rules.

“The only evidence in the record was the evidence submitted by the growers,” he said.

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Sarah L. Wixson, who represented several grower groups that intervened in the case, said during the hearing Friday that had bunk beds been prohibited, it would have reduced available farmworker housing by half.

Wixson noted that many growers are turning to the H2-A guest worker program because they cannot get enough domestic workers for the harvest. Growers are required to provide housing for those workers.

She noted that while the cohort model allowed for bunk beds, it wasn’t a perfect solution since it reduced housing — just not as much as prohibiting bunk beds.

“The emergency rules have not maintained the status quo,” she said.

Skinder acknowledged that Familias Unidas gave voice to an “important perspective.”

“It’s a perspective they clearly will advocate on behave of domestic and temporary workers,” he said. “Based on my review of my records, the state will continue to listen to those concerns.”

In a statement emailed to the Yakima Herald-Republic, Tim Church, director of communications for Labor & Industries, said L&I would continue to work closely with all stakeholders, including farmworker advocates, in addressing issues.

“At L&I, there is nothing more important than worker safety and health. The temporary worker housing emergency rules provide requirements to the agricultural industry that are timely and help employers protect workers during these unprecedented times,” Church wrote. “We’re working closely with farmworker advocates, business owners and public health agencies to monitor worker safety and respond to issues and complaints involving the agriculture industry.“

Schmitt said Familias Unidas has several options, including appealing the decision or asking for reconsideration.

In the end, Schmitt said Familias Unidas remains focused on addressing farmworker safety and remains firm that the rules made by the state do not keep farmworkers safe and are not enforceable.

She pointed to a rule that encourages growers to improve ventilation whenever possible. Schmitt said such a rule isn’t enforceable because it provides growers no guidance on what that entails.

“There are quite a number of things that are dangerous to folks,” she said. “The court decided that the state didn’t act in a totally unreasonable way in making the rules. But we’re still concerned.”

Reach Mai Hoang at maihoang@yakimaherald.com or Twitter @maiphoang