By David Bacon
On March 12 an H-2A visa guest worker living in a Stemilt Growers barracks in Mattawa, Washington, began to cough. He called a hotline, was tested and found out he had COVID-19. He and five of his coworkers were then kept in the barracks for the next two weeks.
A month later three Stemilt H-2A workers in a barracks in East Wenatchee began to cough too. Before their tests even came back, three more started coughing. Soon they and their roommates were all in quarantine. Doctor Peter Rutherford of the Confluence Health Clinic called Stemilt and suggested that they test all 63 workers in the barracks. Thirty-eight tested positive. Then some of those workers who’d tested negative began to test positive too.
Since the H-2A workers infected in the Stemilt barracks arrived in February, and didn’t manifest symptoms until March and April, they must have contracted the virus in the U.S. Guest workers, therefore, are getting infected once they arrive.
The novel coronavirus continues to spread throughout Central Washington. By mid-May rural Yakima County had 1,203 cases – 122 reported on May 15 alone – and 47 people had died. The county has the highest rate of COVID-19 cases on the West Coast – 455 cases per 100,000 residents. For over a week now, hundreds of workers in the same area have been walking out of the apple packing sheds to demand better protections and more money for working in a situation where they may be exposed. Two have now begun a hunger strike.
“Workers are trying to call attention to the danger to the whole community,” says Rosalinda Guillen a longtime farmworker organizer and director of the advocacy group Community to Community. Meanwhile, thousands more H-2A guest workers are scheduled to arrive in the area, first for the cherry harvest and then to pick apples.
H-2A workers (named for the visa program through which they enter the country) are recruited to work in the U.S. on temporary contracts; they can only work for the employer that recruits them, and must leave once the work is done.
For the last decade prefab barracks have been springing up in the middle of Washington’s blossoming apple trees, in orchards often miles from the nearest town. Inside, H-2A workers usually sleep in bunk beds, four to a room, and cook their meals in a common kitchen. Some barracks are ringed by a chain link fence topped by barbed wire, while others have no barriers. If workers want to go into town to buy groceries or to a clinic, they depend on the grower to provide transportation.
The fate of thousands of these workers is at stake in a regulation handed down last week by Washington state’s departments of Health and of Labor and Industries that permits housing conditions that could cause the virus to spread rapidly. Sleeping in bunk beds in dormitories, according to these state authorities, is an acceptable risk. Yet according to Chelan-Douglas Health District Administrator Barry Kling, farmworkers are more vulnerable to getting COVID-19 because they live in these very close quarters. “The lives of these workers are being sacrificed for the profit of growers,” Guillen charges.
Washington State ignores the science
The barracks for Stemilt’s infected workers, like those housing thousands of others, are divided into rooms around a common living and kitchen area. Four workers live in each room, sleeping in two bunk beds. Stemilt says that it has 90 such dormitory units in central Washington, with 1,677 beds. Half are bunk beds.
Maintaining physical separation, especially in labor camps, “will be impossible under conditions H-2A workers typically experience in the United States,” concludes a report in April by the Centro de los Derechos del Migrante (CDM — the Migrant Rights Center). There is no testing for H-2A workers as they enter the country, and until the infected group was found in Washington, there was no testing for them here either.
According to Drs. Anjum Hajat and Catherine Karr, two leading epidemiologists at the University of Washington, “People living in congregate housing such as the typical farmworker housing … are at unique risk for the spread of COVID-19 because they are consistently in close contact with others … crowding increases the risk of transmission of influenza and similar illnesses. If individual rooms are impractical, the number of farmworkers per room should be reduced and beds should be separated by 6 feet. Bunk beds that cannot meet this standard should be disallowed.”
Washington’s state agencies decided to ignore Hajat and Karr’s testimony, however. In contrast, the same scientific analysis was the basis for a decision by Oregon’s Occupational Safety and Health Administration banning bunk beds. Its regulation issued in May tells employers: “Do not allow the use of double bunk beds by unrelated individuals,” and “beds and cots must be spaced at least six (6) feet apart between frames in all directions.”
Oregon authorities resisted pressure from employers to change the rule, but after a Farm Bureau survey of 323 growers claimed that it would result in losing housing for 5,000 farmworkers, its implementation was delayed until June 1.
Oregon, however, isn’t even among the top 10 states importing H-2A workers. California growers last year were certified to fill 23,321 farm labor jobs with H-2A recruits, yet no agency keeps track of the number of workers sleeping in bunk beds less than six feet apart. How their health has been impacted, therefore, is basically unknown.
Washington’s growers, however, have become much more dependent than California’s on bringing in H-2A workers. Last year employers estimated that 65,358 people were employed picking apples in Washington, making it by far the largest apple-producing state in the U.S. Its growers were certified for 26,226 H-2A workers. The vast majority worked in apples – as much as a third of the workforce. One company alone, Zirkle Fruit Company, was certified for 3,400 workers, while Stemilt was certified for 1,517.
The state’s new rule for housing those workers says “Both beds of bunk beds may be used,” for workers in a “group shelter,” consisting of 15 or fewer workers who live, work and travel to and from the fields together. Most Washington State growers would have little trouble meeting this requirement, since their barracks arrangement normally groups four bedrooms in the same pod. Stemilt also has vans that normally hold 14 people, conveniently almost the same number as in the bed requirement. A work crew of 14 to 15 workers would not be unusual.
Who benefits from the new regulation
By framing the bunk bed requirement in this way, Washington’s Department of Health effectively told growers that they did not have to cut the number of workers in each bedroom, and in each dormitory, in half. The rules of the H-2A program require growers to provide housing. If the number of workers safely housed in each dormitory were halved, growers would have two options. They could build or rent more housing, which would be an additional cost. Stemilt, with 850 bunk beds, would have to find additional housing for over 400 workers, and Zirkle perhaps even a thousand.
Dan Fazio, head of the Washington Farm Labor Association (WAFLA), one of the largest H-2A contractors in the U.S., called restrictions on beds to keep workers safely separated “catastrophic” and “a political stunt by unions and contingency-fee lawyers.” (Attempts to reach Fazio and other grower representatives for comments for this story were unsuccessful.)
Alternatively, growers could bring fewer H-2A workers to the U.S., and instead hire more workers either locally, or attract workers living in other parts of the country. This is what growers did until the H-2A program began to expand rapidly 10 years ago. In 2010 they were certified for only 2,981 guest workers. “Farm workers living in California and other states knew there were jobs here, and they’d come,” explains Ramon Torres, president of Washington’s new farm labor union, Familias Unidas por la Justicia. “Most of them had been doing this for many years. But when growers started hiring H-2A workers, they stopped coming. They couldn’t spend hundreds of dollars to get here, and then find out that the jobs were already filled.”
If the number of H-2A workers were cut in half because of the bunk bed requirement, however, Fazio and WAFLA would lose money, since their income is based on the number of workers they supply to growers. Last year WAFLA brought 12,000 H-2A workers to Washington, charging growers for each worker (although it doesn’t disclose publicly how much).
WAFLA has made the H-2A program very attractive, helping to find contractors to build barracks, taking care of paperwork required for government certification and even pushing for lower wages. In the apple harvest most workers are paid a piece rate that used to reach the equivalent of $18 to $20 hourly. In 2018 WAFLA asked the state Employment Security Department (ESD) and the U.S. Department of Labor to eliminate any standard for piece rates for H-2A workers, effectively slashing wages by up to $6 per hour. The ESD and DoL agreed. Fazio boasted, “This is a huge win and saved the apple industry millions.”
Many of the growers’ H-2A barracks were financed with Washington state funds that are allocated for building farmworker housing. Daniel Ford at Columbia Legal Aid, Washington’s legal service organization for farm workers, protested to the state Department of Commerce that growers shouldn’t be allowed to use public funds, since the state’s own surveys showed that 10 percent of farm workers who are Washington residents were living outdoors in a car or in a tent, and 20 percent were living in garages, shacks, or “in places not intended to serve as bedrooms.” The department, however, refused to bar growers from using state subsidies to house H-2A workers.
Immigration status makes H-2A workers vulnerable
One 2017 case convinced many farm worker advocates that the state had no enthusiasm for protecting the welfare of H-2A workers. Honesto Silva, brought from Mexico to harvest blueberries, collapsed in a field belonging to Sarbanand Farms near the Canadian border, and later died. According to a suit filed by Columbia Legal Services against Sarbanand Farms, Nidia Perez, who supervised workers on behalf of the company’s recruiter, told them that they had to work “unless they were on their death bed.” Yet the Department of Labor and Industries announced that Silva had died of natural causes, and that the company was not responsible. Labor and Industries fined Sarbanand Farms $149,800 for not providing breaks and meal periods, and a local judge even cut that in half.
Unions and worker advocates charge that the immigration status of H-2A workers makes it difficult and risky for them to complain about conditions in the barracks or at work that would expose them to the virus. If an H-2A worker is fired for complaining or protesting, they lose their visa status and have to leave the country immediately, at their own expense. This took place at Sarbanand Farms, where 70 workers protested the death of Honesto Silva. They were fired, thrown off the company property, and had to leave the U.S.
Guest workers who complain are often blacklisted, and denied jobs for the following season. One large recruiter, Consular Services Inc. (CSI), a company closely associated with WAFLA, brings more than 20,000 workers to the U.S. every year. It has them sign a pledge that authorizes a blacklist: “I understand that if I don’t follow the rules at work, in housing or conduct, or my productivity on the job isn’t adequate, the boss has the right to fire me and I will lose all the benefit of my work visa, I will have to go back to Mexico, and the boss will report me to the authorities. This will obviously affect my ability to return legally to the United States in the future.”
The Centro de los Derechos del Migrante report casts doubt that the bunk bed regulation proposed by Washington state’s Department of Health, even with its weakened protection, can be adequately enforced. “The problem with protecting workers merely by promulgating regulations,” it emphasizes, “is that regulations cannot overcome the profound power imbalance between employer and worker under the H-2A program.”
That vulnerability, however, makes immigrant labor attractive to employers like Stemilt. Before employing H-2A workers, the company employed others whose immigration status made them easy to pressure. In the late 1990s many of its employees tried to join the Teamsters Union, which lost an election to represent them in 1998. One worker testified to the National Labor Relations Board that she worked without legal immigration papers, with the full knowledge of the company, until the union organizing began. “Before we started organizing Stemilt didn’t mind if we didn’t have papers. It is only now that we have started organizing that they have started looking for problems with people’s papers … and it is only now that they have started threatening us with INS raids … being deported is a very powerful threat.”
Fear rose a year later when 562 apple shed workers throughout Yakima Valley were fired for lacking legal immigration status. The immigration-related threats eventually led to the invalidation of the election lost by the union, but Stemilt never had to sign a contract and remains union-free to this day.
Federal government protects growers, so states must act
In the spring of 2019 Community2Community, Familias Unidas por la Justicia and other farm worker advocates convinced the Washington State legislature to pass a bill to force state agencies to require protections for H-2A workers. The bill, SB 5438, “Concerning the H-2A Temporary Agricultural Program,” was signed by Democratic Gov. Jay Inslee. It funded an oversight office and advisory committee to monitor labor, housing, and health and safety requirements for farms using the H2A program. It also required employers to advertise open jobs to local workers. Representatives from Familias Unidas por la Justicia, the United Farm Workers, legal and community advocates, and representatives from corporate agriculture were appointed to the committee.
When the coronavirus crisis began in early 2020, worker advocates asked the Department of Labor and Industries to issue regulations to guarantee the safety of the H-2A workers. Washington state, however, only issued “guidelines” that were not legally enforceable. Familias Unidas por la Justicia, Community to Community, the United Farm Workers, Columbia Legal Aid and the Northwest Justice Project then filed suit against the state, demanding enforceable regulations.
Skagit Superior Court Judge Dave Needy gave the state a deadline of May 14 to answer the suit, and the Department of Health finally issued the emergency regulation permitting bunk beds the day before the deadline. The unions sharply criticized the new regulation. Ramon Torres, from Familias Unidas por la Justicia, said, “We do not agree with this. They are treating us as disposable, as just cheap labor.” Erik Nicholson, vice-president of the United Farm Workers, said, “We are disappointed that the rules remain ambiguous and don’t provide the scope of protections that farmworkers living in these camps need to protect themselves from the COVID-19 virus.”
The Washington court decision will have an enormous impact, not just on the state’s apple pickers, but on farmworkers nationally, because of the huge expansion of the H-2A program in recent years. Last year growers were certified to fill a quarter of a million farm labor jobs, and the Trump administration seeks to make the program as accessible and inexpensive for growers as possible.
Federal enforcement of protections for H-2A workers is almost nonexistent. The CDM report found that every worker it surveyed reported violations of labor rights and contracts. Nevertheless, of 11,472 employers using the H-2A program, last year the U.S. Department of Labor only filed cases against 431 (3.73 percent), and of them only 26 (0.25 percent) were temporarily barred from recruiting. “It’s deeply concerning,” Nicholson said, “that the federal government has been completely absent in ensuring that the essential women and men who harvest our food are protected.”
States have had to step in. California adopted regulations last year for H-2A housing, barring the use of public funds to build barracks. Washington State passed its law setting up a board to review standards and practices for H-2A recruitment. But the bunk bed ruling effectively makes Washington’s law toothless and leaves H-2A workers exposed to the virus.
California’s anti-barracks law would likely be the next one targeted by those growers intent on keeping labor costs low. They’ve already been promised help by the Trump administration, including a promise on a Federal level to cut the legally required H-2A wages. WAFLA’s Dan Fazio predicts, “If that happens, if it’s lowered to the state minimum wage, growers will bring [more] workers up.” The mandated wage in Washington for H-2A workers would be cut by $2.33 per hour under Trump’s proposal.
In a Memorandum of Understanding on May 19 the US Department of Agriculture and the Food and Drug Administration warned that even regulations like the bunk bed ruling might be too much for the Trump administration. The agencies, they said, may invoke the Defense Production Act to override any state actions that cause “food resource facility closures or harvesting disruption [that] could threaten the continued functioning of the national food supply chain.”
Bruce Goldstein, President of Farmworker Justice, a farmworker advocate in Washington DC, called the MOU a “cold-blooded approach [to] the potential for widespread illness and death of farmworkers.” He added, “The Administration is claiming the right to prohibit states and local governments from requiring workplace safety precautions that might reduce the food supply while saving the lives of people needed in the food system.”
Protecting growers’ profits at the expense of the lives, health and wages of farmworkers has been the historical norm. But in the current COVID-19 crisis, calling farmworkers “essential ” acknowledges not just that the country depends on their labor to eat. It also acknowledges that thousands of people go into the fields every day risking the virus. Farmworkers wonder if they then should be treated as vulnerable guinea pigs.
“The logic of declaring bunk beds acceptable is that some degree of infection and some deaths will happen, and that this is an acceptable risk that must be taken to protect the profits of these growers and this industry,” Rosalinda Guillen charges. “And what makes it acceptable? Those getting sick, and who may die, are poor brown people, and the families and communities who will mourn them live in another country two thousand miles away.”