As you have heard, OSHA released its Covid Emergency Temporary Standard (ETS) last Friday. On Saturday, a “Stay” was issued by the 5th District Court in New Orleans. Briefs have been delivered by the government and the petitioners and a decision may be made on the stay this week. Multiple other suits have been filed in other District Courts with this likely ending up at the Supreme Court possibly in the next few weeks.
As we continue to review the ETS, we want to inform you about it’s applicability to Agriculture. A Cotton Gin IS an Ag Industry. Bale warehouses, elevators, stores, etc. are not Agriculture in OSHA’s eyes. If you are a Cotton Ginning operation with no other operations, our interpretation is you first must determine if you supply housing for gin employees. If you do not, you are not subject to the ETS. If you do maintain a temporary labor camp, what is the maximum number of employees on payroll during the ETS time-period (Nov 5, 2021 – May 5, 2022)? If you have less than (100) employees, you are not subject to the ETS. If you would like to go through the analysis, it is shown below. Two attorneys have agreed with this interpretation of agriculture applicability to the ETS. There are some, however, who have suggested that any agricultural operation with migrant housing would be subject to the ETS, regardless of whether they have 100 employees.
In more detail, the new standard states that the 1928 (Ag) industries must follow the new 1910.501 ETS if at least one of the following statements is true (see underlined below):
- 1928.21 Applicable standards in 29 CFR part 1910.
(8) COVID-19- §1910.501, but only with respect to –
(i) Agricultural establishments where eleven (11) or more employees are engaged on any given day in hand-labor operations in the field; and
(ii) Agricultural establishments that maintain a temporary labor camp, regardless of how many employees are engaged on any given day in hand-labor operations in the field.
If neither of the above statements is true for your ag business, you are not subject to the ETS. If one of the above questions is true for your business, then you are subject to §1910.501. Within this rule, Section 1910.501(b)(1) states:
- 1910.501 (b)(1)
This section covers all employers with a total of 100 or more employees at any time this section is in effect.
Please contact us with any questions you may have about this ETS. We will see what happens next and alert you as this issue progresses.