Since 1976, Congress has prohibited OSHA from spending or obliging any of its appropriation to “prescribe, issue, administer or enforce any standard, rule, regulation or order under the Act” to or upon small farming operations.
Some claim the requirement prohibited OSHA from stepping foot on small farming operations, though that really is hyperbole and not the correct understanding of how the appropriation language was intended to work. Some debate whether this was for good or bad, given the number of injuries and deaths on small farming operations, but the simple fact is that if a farm met these two qualifications, it was outside OSHA’s jurisdiction.
In 2011, the OSHA director of enforcement issued a memo that was sent to regional directors that distinguished between the growing and harvesting of crops and other post-harvest activities like storing, drying, or otherwise handling crops that eventually would be sold (many editorial and opinion pieces on the issue overlooked the fact that the grain had to be sold and not simply stored for use on the farm). Regardless of the size of the operation, what relationship the employees had to the employer, etc., OSHA began enforcing grain-handling regulations on small farming operations.
Having grown up in America’s dairyland (back before California took that title), I lived around and worked on a number of small farming operations. I also worked at a commercial feed mill and became familiar with the operation of a hundred or more small farming operations.
The director of enforcement’s ignorance of how most small farming operations function was immediately apparent upon reading this memo. Other than extremely small farms, those with only 15 or 20 acres of tillable land, every farming operation I worked on and worked with both engaged in post-harvesting activities and, when harvests were good, sold crops.
Ultimately, a small farming operation in Nebraska with one non-family employee, Niobara Farms, and their attorney, Jim Luers, took issue with OSHA’s efforts and enlisted the help of Sen. Mike Johanns. Johanns and some 82 other senators, both Democrat and Republican, sent a letter to Secretary of Labor Thomas Perez, asking him to “reign in OSHA” and stop it from violating the law.
OSHA subsequently withdrew the memo, but OSHA Deputy Administrator Jordan Barab, in a statement to reporters, suggests that OSHA’s efforts relative to small farming operations may not be over.
Given the president’s stated intention to circumvent the legislative process via administrative agency rulemaking and enforcement directives; given what OSHA has already done to create new standards outside the normal rulemaking process; and given Barab’s statement to a room full of lawyers at the ABA OSHA Committee Meeting that the flexibility of existing rules allow OSHA to create new rules, interpret the old rules and create new requirements for employers, we can expect that more industries will see their own version of the small farming operation enforcement effort.
Employers only can hope that they or their fellow industry members retain competent counsel or are able to call upon their congressional representatives to put enough pressure on OSHA to cause it to reconsider the path it is taking when that path clearly is wrong and contrary to Congressional intent.
If no one steps up to challenge OSHA’s imposition of new employer obligations, there potentially is no end to where these “new regulations” might go.
(Mr. Surma’s postings on EHSToday.com do not constitute legal advice or opinion and should not be viewed as a substitute for legal advice. The information provided is based on laws and regulations in effect at the time of creation and is subject to change. Adams and Reese LLP is a multidisciplinary law firm with over 340 lawyers and advisors in 16 offices.)