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A. General.
1.
Background. On June 10, 1980, OSHA entered into an agreement with the
Employment & Training Administration (ETA) and the Employment
Standards Administration (ESA) for the purpose of coordinating enforcement
activities relating to migrant farm workers. In June 1984, MOSH joined in
this coordinated effort.
In addition to MOSH, the Division of Community Services of the
Maryland Department of Health and Mental Hygiene (DHMH) also
conducts inspections of migrant labor camps in Maryland.
2.
Scope.
a.
Applicable migrant housing standards shall be enforced if any of the
following factors in any given case indicate that operation of the camp is
directly related to the employment of its occupants:
(1)
Cost of the housing to the employee: Housing is provided
free or at a low rent.
(2)
Ownership or control of the housing: Housing is owned,
controlled or provided by the employer.
(3)
Distance to the worksite from the camp and from other
noncamp residences: Alternative housing is not accessible to
the worksite (distance, travel, cost, etc.).
(4)
The camp's benefit to the employer: The employer makes the
camp available in order to ensure that his business is
provided with an adequate supply of labor.
(5)
Relationship of the camp occupants to the employer: Those
living in the camp are required to work for the employer
upon demand.
b. A
review of the employer's safety and health program shall be performed
during inspection of a temporary labor camp only if there is specific work
activity being performed at the campsite.
3.
Definitions. For purposes of this chapter, the following definitions
apply.
a.
Temporary Labor Camp or Migrant Housing Facility. Farm housing directly
related to the seasonal or temporary employment of migrant farm workers.
In this context, "housing" includes both permanent and temporary
structures located on or off the property of the employer, provided they
meet the foregoing definition.
b.
New Construction. All migrant housing construction started on or after
April 3, 1980, including totally new structures and additions to existing
structures. Cosmetic remodeling work on pre-1980 structures is not
"new construction" and such structure should be treated as
existing housing.
4.
Applicability of Standards.
a.
New Construction. All new migrant housing built after April 3, 1980, is
subject exclusively to the requirements of 29 CFR 1910.142. An employer
has no choice of standards for this category of housing.
b.
Existing Housing.
(1)
Migrant housing facilities existing on April 3, 1980, are
governed by the following standards or variances granted
thereunder:
(a)
MOSH standard 29 CFR 1910.142;
(b)
ESA standard 20 CFR 654.404-.417 (Subpart E); or
(c)
DHMH regulations found at Code of Maryland Regulations (COMAR) 10.16.01.
(2)
The choice of governing standard will be left to the
employer providing the housing.
B. Scheduling.
1.
Lists. At the beginning of each season OSHA will forward to MOSH a list of
migrant farm worker camps in Maryland, indicating which camps are to be
inspected by each federal agency.
2.
Inspections. The Assistant Commissioner/Authorized Representative shall
determine which migrant labor camps will be scheduled for inspection by
MOSH using the following procedure:
a.
The list provided by OSHA shall be reviewed and revised each year to
include all additional known migrant camps. Such information may be
available from MOSH inspection history, local knowledge and experience,
and other relevant sources.
b.
Any camps known to be inactive shall be deleted from the list, based on
past experience or other reliable sources.
c.
All camps which have never been inspected by MOSH shall be given priority.
d.
The remaining camps shall be numbered consecutively beginning with 1.
e.
Following the guidelines in OSHA Instruction CPL 2.25D, Appendix E, a
random-number method shall be used to select the remaining camps to be
inspected.
f.
Camps shall be selected in the order prescribed until the number of camps
selected equals the number of projected inspections for the year. The
resulting list shall constitute the annual cycle.
g.
Camps on the inspection list may be selected and inspected in any order
that makes efficient use of available resources within each geographic
area.
3.
Exemptions and Limitations. Congress may place exemptions and limitations
on MOSH activities through the annual appropriations act. Refer to current
MOSH Instructions for guidelines on how to apply current exemptions and
limitations to compliance programming.
4.
Accidents and Complaints. MOSH will continue to respond to accidents and
complaints regardless of the scheduling status of the camp.
C.
Enforcement of Temporary Labor Camp Standards. During the opening
conference, prior to the inspection of a migrant housing facility,
employers shall be made aware of the following policy and procedures.
1.
Choice of Standards.
a. At
the opening conference, the inspector will determine if:
(1)
The housing was completed prior to April 3, 1980; or
(2)
The housing was under construction prior to April 3, 1980; or
(3)
The employer entered into a contract for construction of the
housing prior to March 4, 1980.
b. If
the housing falls into any of these three categories, it is to be
considered "existing housing" and the employer may choose which
of the three applicable standards governs the housing.
NOTE:
There may be "pre-April 3, 1980 housing" and
"post-April 3, 1980 housing" at the same location
or as part of the same building. In such cases, the employer
will have the choice of standards for the "pre-April 3,
1980 housing" but must comply with MOSH standards for
the "post-April 3, 1980 housing".
c. In
some instances, the employer may have obtained a variance from applicable
standards. In this case, employers shall have available and be able to
produce copies of variances indicating any requirements which apply.
2.
Citations for Violations of Standards.
a. In
instances where the employer selects 29 CFR 1910.142 as the governing
standard, or where the standard is applied to "new
construction", that standard shall be cited when violations are
found.
b.
Where the ESA or DHMH standard is specified as the governing standard:
(1)
Conditions violating both the ESA standard or the DHMH
standard and the MOSH standard shall be cited under the MOSH
standard.
(2)
Conditions violating the ESA standard or the DHMH standard,
but in compliance with the MOSH standard, shall not be
cited.
(3)
Where conditions violate the ESA standard or the DHMH
standard but are not covered by a specific MOSH standard:
(a)
For serious violations, a general duty clause citation may be issued;
(b)
For other-than-serious violations, the employer should
be encouraged to correct the conditions with no citation
issued, or
(c)
The condition may be referred to ESA or DHMH.
(2)
Under NO circumstances may a CO/IH recommend the issuance of a citation
under the ESA or DHMH standards. Conditions cited by a CO/IH must be cited
under the MOSH law or a standard adopted under the MOSH law.
D. Inspection Procedures.
1.
Worker Occupied Housing.
a.
Generally, inspections shall be conducted when migrant housing facilities
are occupied. Inspections shall be scheduled as soon as feasible after
workers occupy housing so that, when possible, hazards may be abated early
in the work season. Pre-occupancy inspections may be conducted only in
order to accommodate scheduling difficulties, provided that at the time of
the inspection, it is reasonably predictable that workers will imminently
occupy the facilities.
b.
Camp inspections shall be scheduled during regular working hours
in accordance with procedures in Chapter III of this Manual.
c.
Since employees may not speak English or may only speak English
as a second language, every effort shall be made, before the
inspection begins, to find a person to translate conversations
with employees.
d.
The CO /IH shall conduct inspections in such a manner as to
minimize disruptions to the personal lives of those living in
the housing facilities. If an occupant of a dwelling unit
refuses entry for inspection purposes, the CO/IH shall not
insist on entry and shall continue the inspection unless, in the
judgment of the CO/IH, the lack of access to the dwelling unit
involved would substantially reduce the effectiveness of the
inspection. In that case, the procedures for refusal of entry
shall be followed. The same guidelines apply in cases where
employers refuse entry to the housing facility and/or to the
entire farm.
e.
During inspections or investigations, CO/IHs shall encourage
employers to correct hazards as quickly as possible. Particular
attention shall be paid to identifying instances of failure to
correct and violations repeated from season to season. These
violations shall be cited in accordance with procedures outlined
in this Manual.
2.
Primary Concern. In conducting a temporary labor camp inspection,
the CO/IH should be primarily concerned with those facilities or
conditions which most directly relate to employee safety and health.
Accordingly, all migrant housing inspections shall address at least
the following:
a.
Site: Determine the location of the site in relation to swamps,
pools, sinkholes, and other surfaces where water may collect and
remain for extended periods. Determine if the site is in a clean
and sanitary condition (i.e., free from rubbish, debris, waste
paper, garbage and other refuse).
b.
Shelter: Determine whether the shelter provides protection
against elements. Determine whether the rooms are used for
combined purposes of sleeping, cooking and eating. For rooms
used for sleeping purposes, determine the number of occupants
and size of the rooms. Determine for all rooms whether there is
proper ventilation and screening.
c.
Water Supply: Determine whether the water supply has been
approved by the appropriate local health authority; determine
the location of hydrants.
d.
Toilet Facilities: Determine the type, number, location and
sanitary conditions of toilet facilities.
e.
Laundry, Handwashing and Bathing Facilities: Determine the
number, locations and conditions of these facilities.
f.
First Aid Facilities: Determine whether first aid facilities are
readily available.
3.
Dimensions. The relevant dimensions and ratios specified in 29 CFR
1910.142 are mandatory; however, it is inappropriate to cite minor
variations from specific dimensions and ratios when a violation does
not have an immediate or direct effect on safety and health. In
those cases in which the standard itself does not make reference to
specific dimensions or ratios, but instead uses adequacy as the test
for the cited conditions and facilities, the CO/IH in consultation
with the MOSH Supervisor shall make the determination as to whether
a violation exists on a case-by-case basis considering all relevant
factors.
E. Documentation for Migrant Housing Inspections.
1. The following
facts shall be carefully documented using appropriate MOSH forms:
a. The age of
dwelling unit, including additions; and for housing under construction,
the date construction was started.
b.
Number of dwelling units and number of occupants in each unit.
c.
Approximate size of area in which the housing is located and the distance
between dwelling units and water supply, toilets, livestock and service
building.
d.
The identity of the employer, in order to ascertain the proper party or
parties to whom a citation, if issued, should be directed. In situations
where a grower and a crew leader share joint responsibility for the
migrant housing facility, both should be held responsible for hazardous
housing conditions and cited accordingly. Factors to be considered
include:
(1)
Who pays employee benefits and wages,
(2)
Who supervises employee work activities,
(3)
Who has the authority to abate,
(4)
Who has control over the work,
(5)
Who gives direction and provides supervision,
(6)
Who hires, fires and disciplines workers.
e.
Whether housing provided or made available by the employer is related to
the employment of the worker. Housing should be treated as
employment-related if:
(1)
Employers require employees to live in the housing, or
(2)
Isolated location or the lack of economically comparable
alternative housing makes it a practical necessity to do so,
and/or
(3) The housing is provided or made available as a benefit to the employer.
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