By Marcus Mitchell, J.D.
New Jersey was hit particularly hard by COVID-19 in spring of 2020. There were several factors contributing to its high case rate and death toll in the state, including sometimes shifting and unclear directives from leadership and high population density. Communities of color experienced disproportionate death rates, due to institutional discrimination manifesting in the form of disparate and inequitable access to health care and an increased likelihood of pre-existing co-morbidities.
Another group particularly vulnerable to infection was New Jersey’s seasonal farm workers. There are an estimated 22,000 seasonal farm workers in New Jersey. Many of these workers are “follow-the-crop” workers that travel up the east coast during the year. By following the peak harvest season north, workers can maximize their hours and income. Such interstate travel increases transmission likelihood, particularly because agricultural workers are deemed essential, exempting them from 14-day quarantine requirements following interstate travel. According to joint guidance from the New Jersey Departments of Agriculture and Health, seasonal farm workers are at heightened risk of exposure because “the harvest and processing of crops requires close contact” and because seasonal farm workers “rely on group transportation and camp-style housing.” These circumstances led to reported infection rates as high as 18% in a Bridgeton, NJ clinic and an estimate of 5% of farmworkers statewide.
There are additional potential risk factors for agricultural workers. According to recent USDA estimates, roughly half of the agricultural workers in the United States are undocumented. This blog has previously covered the treacherous experience of being undocumented in the time of COVID-19. Despite contributing up to $600 million in state and local taxes annually in New Jersey,[1] undocumented workers are unable to access the social safety net enjoyed by citizens, including programs for unemployment and food assistance. This inability to access government food assistance programs forces undocumented workers to turn to emergency food organizations such as food banks, many of which are already facing increased demand.
Even amid some expansion of government services, heightened immigration enforcement and an often xenophobic political climate can have a chilling effect, deterring undocumented immigrants from availing themselves of government programs. Recent Trump administration rulemaking also discourages workers with temporary authorization from accessing federal services to which they would otherwise be entitled. In 2019, the US Citizenship and Immigration Service (USCIS) expanded their “public charge” policy.
In making determinations to upgrade an immigrant to a more permanent status, USCIS will now consider if they used SNAP or Medicaid. Even during the COVID-19 pandemic, an immigrant with temporary status using SNAP benefits may be considered “likely at any time to be a public charge,” and their use of government food benefits may prevent them from gaining permanent citizenship. Though the public charge rule should not exist even in normal circumstances, forcing an immigrant with temporary status to choose between food security and an opportunity at permanent citizenship is uniquely cruel. Note that these limitations on assistance occur not only in the era of COVID-19, but during widespread insufficiencies in monitoring of wage theft and unsafe working conditions by the Department of Labor.
Undocumented immigrants are less likely to report unsafe working conditions for fear of retaliation from employers. Intimidating and discouraging workers from advocating for safe working conditions is particularly dangerous in the time of COVID-19. Though guidance for protection measures in farms was provided by New Jersey, it did not come with enforcement mechanisms or penalties for non-compliance. Only 11 states have passed measures mandating the provision and use of personal protective equipment (PPE), physical distancing, and worker testing on farms that is advised in the New Jersey guidance document.
This increased risk due to cramped housing, transportation, and working conditions on farms is not unique to New Jersey. Farmworker Justice, along with numerous other farmworker and immigration advocacy organizations, wrote a letter to the Trump administration advocating for implementation of federal protections for participants in the H-2A temporary foreign agricultural worker program. The Trump administration, despite showing a willingness to make temporary changes to ensure farms were staffed, refused to implement safety measures.
This blog has covered the lack of a cohesive strategy and insufficient protections for workers at the federal level. Historically understaffed and pursuing a stunningly low number of cases in earnest, there was little protection for workers at the federal level from the Occupational Safety and Health Administration (OSHA). Even in cases in which employer wrongdoing was found, fines have been extremely low relative to employer size and revenue.
Without accountability, some New Jersey farms took very few measures to protect their vulnerable workers. Though state officials tried to institute a robust testing system, it often failed to overcome the lack of a mandate. At one point, 57 farms were found to be non-compliant, with some even barring medical teams from doing on-site testing. Estimates from Jessica Culley, general coordinator at farmworkers support committee Comité de Apoyo a los Trabajadores Agrícolas (CATA), place non-compliance rates at 25% of farms. Culley was also skeptical of the feasibility of some policies recommended in the New Jersey state guidance, notably the idea of having an isolated workforce of workers with asymptomatic COVID-19.
Many of the guidance protocols seem insufficient or unrealistic, particularly with frequently cramped communal living quarters for seasonal workers. Larger farms, such as Atlantic Blueberry, one of the state’s largest blueberry farms, were able to purchase extra busses and dividers for beds in an attempt to maintain distancing. But without sufficient federal funding and facing decreased demand from schools and restaurants, smaller farms may struggle to afford the implementation costs of similar necessary protections, placing workers at even greater risk.
A legislative attempt to mitigate these issues at the state level was the Farmworkers Epidemic Health and Safety Act, introduced June 22, 2020 in the State Senate by Democratic Senators M. Teresa Ruiz and Nilsa Cruz-Perez. The bill would mandate testing of all farmworkers upon commencement of employment and require testing to “repeat as frequently as the commissioner deems appropriate.” It also requires publication of the testing results in a timely manner, as well as coordination among all New Jersey departments deemed appropriate. There are provisions for inspections of any worksite, including reviewing employer records. There was also a section dedicated to development of a comprehensive education and publicity program. This information campaign will be important to galvanize participation in the social distancing protocols. Language barriers, disparate access to education and information, and unclear protocols were all barriers to social distancing in summer of 2020. Filemón Matías, owner of a Bridgeton labor services company, had some potential workers refuse testing, believing the hot weather had killed the coronavirus.
Though the bill passed in the New Jersey State Senate, it is yet to pass in the State Assembly. Passing the bill with sufficient time to develop and implement the testing program is an important step. There is a temporal element to the testing program, which did not roll out soon enough in 2020. Testing immediately upon employment is crucial, especially considering how often workers are traveling from out of state. In the communal living situation so often present for New Jersey farms, spread can be rapid. In early May, weeks before New Jersey released its guidance and before the roll out of the testing program, a Salem County farm of roughly 80-100 workers had 59 reported infections. The farm’s township a week earlier had just 5 positive cases. With seasonal arrivals usually beginning in early May, time is quickly dwindling.
Remaining vigilant and aggressive in implementing policy to protect farmworkers is necessary even with vaccine distribution beginning in New Jersey. There have already been issues with the vaccine rollout in New Jersey. Governor Murphy has asserted the state needs increased doses from the federal government. Reports also indicate, however, that hundreds of thousands of doses have been received but not administered in New Jersey and Pennsylvania.
Even with an extremely successful vaccination campaign, there is no guarantee seasonal workers moving into the state will be vaccinated. Like the United States, the timeline for vaccine distribution for the Central American and Caribbean countries that provide much of the seasonal workforce is not clear and may lag behind the US in distribution. Undocumented immigrants also may struggle to get the vaccine, with some US politicians opposing their receiving of it altogether. Developing institutional infrastructure for the administration of testing, vaccination, and inspection coupled with policy reform for the long-term protection of farmworkers must be the path moving forward to ensure the safety of farmworkers in New Jersey and beyond in 2021.
[1] This juxtaposition is noted only to further accentuate the injustice in the difficulties faced by undocumented workers, particularly with regards to food insecurity. Regardless of their tax contributions, all people are entitled to adequate food, which is an internationally recognized human right.
This article was originally published on the COVID-19 and the Law blog.
Marcus Mitchell graduated from Harvard Law School in May 2022.
