Agricultural worker policy review Prepared by Joel Diringer and

Agricultural worker policy review

Prepared by Joel Diringer and Nimrat Sandhu

The policies affecting the health of agricultural workers are reflect the interplay of race,

immigration status, poverty and harsh working conditions. Agricultural “exceptionalism” has

lessened labor protections for agricultural workers who labor in a dangerous occupation, while the

immigrant status of the largely Latino workforce has marginalized agricultural workers into low-

paying jobs and communities

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Labor protections

Historically, US agricultural workers have been excluded from many labor protections afforded to

other workers. Agricultural workers remain excluded from federal overtime and certain child labor

requirements under the Fair Labor Standards Act, as well as many state minimum wage laws and

workers’ compensation laws, and many occupational safety and health protections. The principal

federal labor law governing agricultural workers is the Migrant and Seasonal Agricultural Worker

Protection Act

Since a vast majority of agricultural workers are immigrants, and a large percentage do not have

legal authorization to work in the US, immigration laws and policies have a disparate impact on

agricultural workers compared to other US workers. The US has implemented “guest worker”

programs such as the Bracero program from the 1940’s to the 1960’s, and the current H-2A

program to bring in temporary foreign non-immigrant workers

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California has had a more progressive history beginning in expanding the rights of agricultural

workers beyond those provided by the federal government. The California Agricultural Labor

Relations Act of 1975 established the right of collective bargaining for agricultural

workers

.California law has provided agricultural workers greater rights than federal law to have

work breaks, potable drinking water

,well maintained toilet facilities and hand washing facilities

and be free from heat related stress

. California also recently provided for raises in the minimum

wage,10 extended overtime benefits to farm workers

and encouraged construction of farm

worker housing

California has stricter oversight pesticide registration and use than the federal government through

the California Department of Pesticide Regulation (DPR) which was created in 1991, when the

state’s pesticide regulatory program was incorporated into the newly created California

Environmental Protection Agency

Health coverage

The Affordable Care Act (ACA or “Obamacare”) greatly expanded the availability of health

insurance coverage for Americans. It eliminated exclusions for pre-existing conditions, provided

subsidies to lower income individuals with incomes below 400 percent of the federal poverty level

to purchase health insurance, and allowed States to expand Medicaid (Medi-Cal in California) to

previously ineligible low-income persons. It also required larger employers to offer full time

workers health coverage not to exceed 9.5 percent of the employee’s income and required

individuals to obtain insurance or pay a penalty. (The penalty portion of the individual mandate

was later eliminated by Congress.)

Agricultural workers, however, continue to face challenges in obtaining health coverage due to

their immigration and work statuses. The ACA excluded undocumented residents from obtaining

coverage through and exchange and the Medicaid expansion, thus leaving the “employer mandate”

as the remaining major source of coverage. However, implementing regulations excluded seasonal

workers from the employer mandate. It also set the minimum value of employer-offered coverage

at a level that allowed for large deductibles and co-pay reducing the value to low-income farm

workers

California fully embraced the ACA and implemented a State health insurance exchange (Covered

California) and expanded Medi-Cal to cover low-income individuals under 138 percent of the

federal poverty level. Overall, California lowered its rate of uninsured persons from 16.3 percent

in 2012 to 8.5 percent in 2016

. Recently, California further expanded subsidies to persons with

incomes under 600 percent of the poverty level and reinstituted the individual mandate to purchase

insurance

Immigration barriers

Agricultural workers, however, are still subject to federal barriers to coverage due to their

immigration status. The current federal Administration has recently adopted several regulations

that deter immigrants – legal and unauthorized -- from applying for health coverage and other

benefits for fear of being labelled a “public charge.”

California, on the other hand, has incrementally expanded coverage for undocumented residents

by expanding Medi-Cal eligibility (at State expense) for otherwise eligible young person’s up to

age 26

. The Governor’s 2020 budget proposal further expands Medi-Cal eligibility to elderly

immigrants, 65 years of age, and older

In response to ongoing farm labor shortages and immigration issues, the House of Representatives

recently passed the bipartisan Farm Workforce Modernization Act (HR5038). The FWMA

establishes a program for agricultural workers in the United States to earn legal status through

continued agricultural employment, reforms the H-2A program to provide more flexibility for

employers, and establishes a mandatory, nationwide E-Verify system for all agricultural

employment

. Providing legal status to previously undocumented farm workers will potentially

expand their eligibility for public programs such as Medicaid and ACA subsidies.

Access to healthcare

Access to health care presents complex challenges to agricultural workers. Approximately half of

all agricultural workers are undocumented and are not eligible for Covered California, Medical,

Medicaid, State Children’s Health Insurance Program (SCHIP) or Medicare

. Federally Qualified

Health Centers and Community and Migrant Health Centers are, by law, permitted to offer care

regardless of immigration status and are a primary source of health care. Although relatively

modest, copayments are out of reach for many agricultural workers. Sliding eligibility scales are

not available to many due to income verification and proof of residency requirements. Emergency

Medical Assistance provides care for hospital-based emergencies, but follow-up care is not

covered. Workers’ Compensation is a primary form of health insurance for agricultural workers

and is provided by the employer. However, provision is not mandatory in all states. Farms with

more than 50 employees can provide coverage through ACA but documentation limits eligibility

and access. In recent years, large farms have opened health care clinics for their agricultural

workers.

References

1) Alexis Guild & Iris Figueroa, The Neighbors Who Feed Us: Farmworkers and Government

Policy— Challenges and Solutions, Harvard Law & Policy Review Vol. 13

2) Rodman, S. O., Barry, C. L., Clayton, M. L., Frattaroli, S. Neff, R. A., & Rutkow, L. (2016).

Agricultural exceptionalism at the state level: Characterization of wage and hour laws for U.S.

farmworkers. Journal of Agriculture, Food Systems, and Community Development, 6(2), 89–110.

http://dx.doi.org/10.5304/jafscd.2016.062.013

3) Erin R. Hamilton , Jo Mhairi Hale, Immigrant Legal Status and Health: Legal Status Disparities

in Chronic Conditions and Musculoskeletal Pain Among Mexican-Born Farm Workers in the

United States, Demography, February 2019, Volume 56, Issue 1, pp 1–24|

4) Athena K. Ramos, Commentary: A Human Rights-Based Approach to Farmworker Health: An

Overarching Framework to Address the Social Determinants of Health, Journal of Agromedicine,

Volume 23, 2018 - Issue 1

5) Escalante, C.L. and T. Luo. 2017. "Sustaining a Healthy Farm Labor Force: Issues for Policy

Consideration." Choices. Quarter 1. Available online: http://www.choicesmagazine.org/choices-

magazine/theme-articles/farm-labor-issues-in-the-face-of-us-immigration-and-health-care-

reform/sustaining-a-healthy-farm-labor-force-issues-for-policy-consideration

6) Martin, P. 2017. "Theme Overview: Farm Labor Issues in the Face of U.S. Immigration and

Health Care Reform." Choices. Quarter 1. Available online:

http://www.choicesmagazine.org/choices-magazine/theme-articles/farm-labor-issues-in-the-face-

of-us-immigration-and-health-care-reform/theme-overview-farm-labor-issues-in-the-face-of-us-

immigration-and-health-care-reform

7) The Neighbors Who Feed Us: Farmworkers and Government Policy— Challenges and

Solutions Alexis Guild & Iris Figueroa, Harvard Law & Policy Review Vol. 13

8) Agricultural Labor Relations Act of 1975, Cal.Stats. 1975, Third Extraordinary Session, c. 1

Sec. 1 at 4013.

9) California Code of Regulations, Title 8, Section 3395

10) California Code of Regulations, Title 8, Section 3457

11) AB 1066 (Chapter 313, Statutes of 2016)

12) AB 1783 (Chapter 866, Statutes of 2019)

13) California Department of Pesticide Regulation; California Environmental Protection Agency,

A Guide to Pesticide Regulation in California, 2017 Update

14) Schenker, M. B., McCurdy, S. A., Riden, H. E., Villarejo, D. (2015). Improving the health of

agricultural workers and their families in California: Current status and policy recommendations.

University of California Global Health Institute.

15) Covered California press release, July 09, 2019 “California’s Initiatives Will Lead to Hundreds

of Thousands Gaining Health Care Coverage With Lower Premiums and New Financial Help”

https://www.coveredca.com/newsroom/news-releases/2019/07/09/californias-initiatives-will-

lead-to-hundreds-of-thousands-gaining-health-care-coverage-with-lower-premiums-and-new-

financial-help/

16) US Citizenship and Immigration Services, Public Charge Fact Sheet,

https://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet, accessed January 23, 2020.

Immigrant Legal Resource Center, Public Charge, https://www.ilrc.org/public-charge, accessed

January 23, 2020.

17) California Department of Health Care Services, https://www.dhcs.ca.gov/services/medi-

cal/eligibility/Pages/YoungAdultExp.aspx, accessed January 23, 2020.

18) California Department of Health Care Services, 2020-21 Governor’s Budget Highlights,

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=14&ved=2ahUKEwjy_t

297prnAhXUpJ4KHbnxA_wQFjANegQIBRAB&url=https%3A%2F%2Fwww.dhcs.ca.gov%2F

Documents%2FBudget_Highlights%2FDHCS-FY-2020-21-Governor%2527s-Budget-

Highlights.pdf&usg=AOvVaw2H-TgrUGBJ9UBLrLGmj4aN, accessed January 23, 2020.

19) California Department of Health Care Services, 2020-21 Governor’s Budget Highlights,

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=14&ved=2ahUKEwjy_t

297prnAhXUpJ4KHbnxA_wQFjANegQIBRAB&url=https%3A%2F%2Fwww.dhcs.ca.gov%2F

Documents%2FBudget_Highlights%2FDHCS-FY-2020-21-Governor%2527s-Budget-

Highlights.pdf&usg=AOvVaw2H-TgrUGBJ9UBLrLGmj4aN, accessed January 23, 2020.

20) https://www.congress.gov/bill/116th-congress/house-bill/5038