February 21, 1978

MEMORANDUM FOR: ACTING REGIONAL ADMINISTRATOR
                Region IV

THRU:           DONALD E. MACKENZIE Field Coordinator

FROM:           RICHARD P. WILSON Deputy Director Federal Compliance and
                State Programs

SUBJECT:        Questions about Temporary Labor Camp Inspections

Your memorandum of October 26, 1977, relaying questions from your Columbia, S.C., Area Office about OSHA migrant housing inspection policy, raises issues which the following comments address. I am sorry for the delay in responding. Generally, dealing with these issues in specific cases will require the exercise of careful judgment by CSHOs, Area Directors and State officials. However, the following guidelines will hopefully assist you in making appropriate determinations.

1. "When the States or county governments own and possibly control immigrant labor housing what should be OSHA's (and any applicable State OSHA agencies') policy toward inspection of the imigrant crew chief as the "employer"?"

For purposes of compliance with the temporary labor camp standard (1910.142), OSHA generally regards the grower for whom migrant laborers perform work and the migrant laborers' crew leader (when there is one) as joint employers and issues citations for any violations to both grower and crew leader. This practice is followed when it is established that the grower and crew leader share employer responsibilities, i.e., setting and paying employee wages, supervising employee work activities, and possessing authority to abate violations. Of course, in order for the standard to apply to a housing facility, it must be established that employees are, or imminently will be, occupying the housing as a condition of their employment (see FOM #76-17, item 2.c. (5)).

When migrant employees are housed in publicly owned facilities as a condition of employment, both the grower and the crew leader may be limited in their ability to secure timely correction of violative conditions in the housing. This will not always be the case. The terms of an employer - public agency agreement (e.g. lease), the provisions of public law, the good will of the public agency, a grower's or group of growers' willingness to make or finance corrections, or other circumstances may permit achievement of corrections within a reasonable time period. Even when they cannot secure such correction, however, employers will still be able to abate violations by removing employees from exposure to any violative conditions. In some cases, this may mean removing employees entirely from the facilities. Thus, employers who house workers in public housing are to be cited for housing violations to which their workers are exposed and to be required to eliminate the exposure in one way or another.

In view of the cost, both human and economic, which may result from the necessity of removing employees from a labor camp, OSHA (and State OSH officials) should work with migrant labor employers in attempting to arrange with State or county officials for abatement. Assistance may include explaining to public officials the nature of the hazards involved, the necessity for abatement, and the possible consequences for employers and employees if corrections are not made. Depending on the gravity of the violations involved, Area Directors (and State officials) may take account of special difficulties occasioned by public ownership of the housing when they set abatement periods. However, neither such difficulties nor OSHA/State efforts to assist with them shall be taken to relieve employers of their obligation to abate violations cited nor to give reason to extend an abatement period to an extent which poses an unreasonable burden on employees.

It should be noted that, although both the grower and the crew leader are to be cited when they are joint employers of exposed workers, the classification of the violations and the calculation of penalties may differ for each. As noted in response to question 4 below, a violation may be "repeated" for one employer but not for the other. Further, the size and financial viability of the business, the good faith and the history of previous violations may differ significantly for the two and have a significant impact on penalties.

2. "What should our policy be where migrants are housed in motels?"

Where growers and/or crew leaders house migrant workers in motels as a condition of employment, they are to be cited for violations to which the workers are exposed. The ability of employers to secure timely correction of violative conditions in the housing may be limited by the fact that they do not own the facility.

However, the employers' inability to secure correction of hazardous conditions does not relieve their responsibility to remove their employees from exposure to the conditions.

3. "Is there an appropriate answer to the incongruity where OSHA standards are applicable to temporary migrant housing but not applicable to housing for full time employees which may be equally unsanitary or unhealthful array?"

OSHA's standard on housing for migrant workers (1910.142) applies only to housing. States which have adopted OSHA's standard verbatim presumably operate under the same limitation, though that is a matter for determination by each State and its judicial system. Some States may have standards which are not limited to temporary housing; however in most instances, State OSHA programs do not apply to permanent housing even though it is provided as a condition of employment.

It should be emphasized that the "temporary" in the standard applies to the term of employee occupancy of housing not to the housing itself. Thus, housing which is occupied by the same workers year round is considered permanent; housing which is occupied only periodically or by different workers during a year is considered temporary.

The basis for this limit to the applicability of the OSHA standard is the intention of the Department of Labor to avoid involvement where a landlord-tenant relationship is in effect. This relationship is traditionally regulated by local governments. Where permanent housing is found which is apparently not in compliance with the OSHA standard, local housing or public health authorities may be able to take action.

4. "What should OSHA's enforcement policy be toward employers who are cited one year for "other" standard housing violations but, due to the shortness of the migrant occupancy period, the follow-up inspection finds the camp unoccupied and the next season finds the same violations for the same housing? Can willful or repeated violations be cited without a follow-up at the end of the first season, or should a failure to abate citation be issued counting the number of housing occupied days since the original abatement date? (Possibly different crew chiefs will require different migrants to occupy the same unabated housing from year to year further complicating the problem). Should rigorous abatement dates (1 or 2 days) be established even for violations requiring extensive repair to assure abatement and prompt OSHA follow-ups in such instances?

As indicated in Chapter X, G, 1 of the FOM, an abatement period "should be the shortest interval within which the employer can reasonably be expected to correct the violation." When an employer can reasonably be expected to abate violations before the end of a growing season, the abatement date should be set within that period. One or two day abatement periods may be appropriate under some circumstances. The relative importance of abatement to the health and well being of the workers in each particular case should be considered in determining how quickly it is reasonable to expect the employer to act. A follow-up inspection should be conducted when necessary to assure that abatement has been accomplished.

When a follow-up inspection finds a camp unoccupied (or when no follow-up inspection was conducted) and an inspection during the next growing season finds a violation which existed during the previous inspection, it is necessary to obtain evidence that the employer did not abate the violation before a notice of penalty for failure to abate can be issued. If such evidence is obtained, the failure-to-abate penalty would be calculated based on the number of days employees were exposed to the violative condition since the original abatement date. When such evidence cannot be obtained, it will generally be appropriate to cite the violation as repeated. In some instances, evidence may be obtained that the employer has willfully permitted the violation to continue or recur (according to the description of willfulness in Chapter VIII, B, 4 of the FOM), in which case the violation should be cited as willful. A second or their repeat of a violation may help to support a finding of willfulness more firmly than a first recurrance. However other factors, as outlined in the FOM, are decisive in determining whether a violation is willful.

Of course, only the history of previous violations of the employer whose employees are occupying (or are about to occupy) a camp can be considered in determining whether a violation involves a failure to abate or is repeated. If a camp is used by more than one grower or by different crew leaders from year to year, enforcement of the housing standard may be complicated. However, it is not necessary that a violation be classified the same for a grower and a crew leader when they are joint employers. A violation may represent a failure to abate or a repeated violation for a grower but an initial violation for the crew leader. Conversely, a crew leader may have been cited previously for the same violation at this or another camp within an area office's jurisdiction, while working with another grower, so that the violation is repeated for him but not for the grower. Hence each violation must be classified separately for each employer, based on the particular record of each. It should be emphasized, however, that the fact that different employees are housed in a camp from season to season does not effect the classification of a violation. Only whether the employer is the same is at issue in the classification.

5. "Considering our present concern over de-emphasizing standard violations not directly related to occupational safety and health, should violations of 29 CFR 1910.142 be de minimis, "other," or serious?"

Violations of 29 CFR 1910.142 involve a range of conditions which require a range of classifications. CSHOs and Area Directors (and their State counterparts) must exercise professional judgment in determining appropriate classifications on a case by case basis.

Program Directive #200-67, issued on December 1, 1977, elaborates criteria for determining when a violation is de minimis. FOM #76-17, page 3 is in accord with that program directive when it indicates that "it is appropriate to cite minor variations from specific dimensions and ratios as de minimis when a violation does not have an immediate or direct effect on safety and health. . . ." There may be other requirements of the housing standard which would not directly or immediately affect employee safety and health in some circumstances but would in others. For example, violations of the requirement that screens be provided (29 CFR 1910.142(b)(8)) would be de minimis in an area in which no insects are present to threaten the health of workers. CSHOs must consider what injury or illness the standard requirement is designed to prevent and whether compliance with the requirement would directly or immediately contribute to its prevention in the particular circumstance. Judgments must be made on a case by case basis.

Classification of a violation as serious or other depends primarily on the severity of the injury or illness it is designed to prevent. When the injury or illness is serious, the violation should be classified as serious. For example, if the water supplied to workers has not been approved by the appropriate health authorities and is found to be contaminated in a manner which could cause serious illness, a violation of 29 CFR 1910.142(c)(1) should be cited as serious. Similarly, contaminated kitchen or dining facilities or highly contaminated sanitary facilities would generally involve a serious violation, as would failure to report to the health authorities a case of suspected food poisoning or other symptoms of potentially serious illness.

On the other hand, when the injury or illness would be other than serious, the violation should be classified as "other." For example, since poor lighting in a toilet room (a violation of 29 CFR 1910.142(c)(8)) would generally be cited as on "other" than serious injury, it would generally be cited as on "other" violation. Again, judgments must be made based on the particular facts and circumstances of each violation.