New Jersey-2020-S2602-Amended

An Act concerning public health and certain protections for farm workers, and supplementing Title 26 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

¹[5.] 1.¹ This act shall be known and may be cited as the "Farm Worker Epidemic Health and Safety Act."

¹[1.] 2.¹ (New section) The Legislature hereby finds and declares that:

a. The COVID-19 epidemic has made New Jersey more aware of which populations are more vulnerable to the spread of communicable disease, with the Department of Health classifying farm workers, especially migrant farm workers, as being a highly vulnerable population meriting a high priority in testing and other health services during epidemics such as the COVID-19 epidemic.

b. Among the many aspects of their work which make farm workers especially vulnerable to epidemics or pandemics of communicable disease are the often close crowding of the workers in worksites and in farm employer-sponsored or farm employer-authorized housing, transportation and dining facilities, heightened vulnerability to respiratory illness caused by exposure to pesticides and fungi, the lack of health insurance coverage and paid sick days for most of the workers, and limited access to water, bathrooms and basic sanitation, making it difficult to implement important preventive measures;

c. Because of the rapidity of the spread of communicable disease which may occur under such circumstances, an outbreak among farm workers can potentially shutter entire farm operations, not only endangering the health, livelihoods, and even the lives of the workers, but causing significant immediate disruption of the supply of food and other agricultural products at a time of great need for them, and potentially result in serious long-term damage to the viability of the agricultural and food processing sectors of the State's economy;

d. The potential harm from outbreaks of epidemic communicable diseases to farm employers and farm workers is inextricably tied to the great potential danger to public health from outbreaks of contagious disease among workers who handle food consumed by members of the general public; and

e. Therefore, preventing the spread of communicable disease at workplaces in the farm sector is, above all, a public health goal of the highest importance for the State and all of its citizens, meriting a major effort of public health officials, farm employers, and farm workers to ensure that all possible effective actions be taken towards that goal, including designating farm workers as being among the groups with the highest priority for testing for communicable disease during declared emergencies.

¹[2.] 3.¹ (New section) As used in P.L. , c. (C. ) (now pending before the Legislature as this bill):

"Commissioner" means the Commissioner of Health.

"Department" means the Department of Health.

"Farm employer" means any employer who employs one or more farm workers on a farm.

"Farm worker" means any employee engaged to labor on a farm in the production, harvesting and processing of agricultural products, and shall include any employee subject to the provisions of subsection d. of section 5 of P.L.1966, c.113 (C.34:11-56a4).

"Public health emergency" means an occurrence or imminent threat of an illness or health condition, caused by bioterrorism, epidemic or pandemic disease, or a novel and highly fatal infectious agent or biological toxin, that poses a substantial risk of a significant number of human fatalities or incidents or permanent or long-term disability, and which has been declared a public health emergency by the Governor.

"State of emergency" means a natural or human-made disaster or emergency, including an epidemic or other health emergency, for which a state of emergency has been declared by the President of the United States, the Governor, a municipal emergency management coordinator, or other public authority permitted by law to declare a state of emergency. If the state of emergency does not apply to the entire State, an employee shall not be regarded as a covered employee under P.L. , c. (C. ) (now pending before the Legislature as this bill) unless the employee is working in the area subject to the state of emergency.

¹[3.] 4.¹ (New section) The commissioner shall, during a public health emergency or state of emergency related to epidemic or pandemic disease, collaborate with the Commissioner of Labor and Workforce Development, the Commissioner of Community Affairs, and Commissioner of Environmental Protection, and the Secretary of Agriculture, and any other heads of State departments that the commissioner deems appropriate, to establish a system to ensure that those departments, on a timely basis, share with each other information regarding violations of public health, environmental, or labor laws applicable to worksites at farms, migrant labor camps, and other housing, transportation or dining facilities of farm employers, including the information from local boards of health and other entities authorized to assist department inspection or enforcement efforts. Each commissioner shall maximize coordination of enforcement efforts by taking into consideration all relevant information from the system regarding violations of those laws when conducting inspections of worksites and facilities, making determinations regarding violations of any of the laws, and imposing the fines or other sanctions for the violations provided by law to each commissioner. Each commissioner shall issue to the Governor, the Legislature and the public a report of enforcement activities of the department with respect to applicable laws, including inspections conducted, violations determined, and fines or other sanctions imposed by the department for the violations or by local authorities in cooperation with the department. In the case of the state of emergency declared by the Governor on March 9, the reports shall be issued not later than December 31, 2020. In the case of any subsequent public health emergency or state of emergency, the reports shall be issued not later than 120 days after the end of the emergency.

¹[4.] 5.¹ (New section) As part of the commissioner's responsibility to protect the health of the public by regulating the detection, prevention, and control of communicable, infectious and preventable diseases, the commissioner, during a public health emergency or state of emergency related to epidemic or pandemic disease, shall, with respect to farm workers, utilize the powers provided to the commissioner, including the powers provided by sections 15 through 33 of P.L.1947, c.177 (C.26:1A-15 through 26:1A-33), chapter 4 of Title 26 of the Revised Statutes, and the "Emergency Health Powers Act," P.L.2005, c.222 (C.26:13-1 et seq.), to:

a. designate farm workers as being among the groups with the highest priority for testing for communicable disease during the emergency, and conduct, or authorize or require local boards of health, or, to the extent that the commissioner and the local boards are not able to provide sufficient personnel for the purpose, authorize or contract with other entities, to conduct, the testing of every farm worker working on a farm, at their workplace or at farm employer-sponsored or farm employer-authorized housing facilities, immediately following the effective date of P.L. , c. (C. )(now pending before the Legislature as this bill), or, if later, at the time that each farm worker commences employment with a farm employer, and shall have testing repeated as frequently as the commissioner deems appropriate, and, in a timely manner, make the results, for each workplace and facility, of the testing available to the public, except as prohibited by law, and provide the results of the testing regarding individuals to local boards of health, the farm employers ¹[and farm workers at each worksite and facility] as permitted under the federal "Health Insurance Portability and Accountability Act of 1996," (Pub.L.104-191), and farm employers who shall be required to notify any employee who might have come in contact with or been exposed to a person who tests positive for a pandemic disease covered under the provisions of that act, consistent with the confidentiality requirements of the federal "Americans with Disabilities Act of 1990," Pub.L.101-336 (42 U.S.C. s.12101 et seq.), and any other applicable laws¹;

b. conduct, or authorize or require local boards of health, or, to the extent that the commissioner and the local boards are not able to provide sufficient personnel for the purpose, authorize or contract with other entities, to conduct, in a timely manner, inspections of each farm worksite and related farm employer-sponsored or farm employer-authorized facility, and employer records, with follow-up inspections where violations are found, to determine whether the farm employers are meeting all standards, guidelines and guidance issued by the commissioner or other authority declaring the public health emergency or state of emergency, or required by law, which shall include that each farm employer:

(1) Cooperates fully in permitting access to the worksites, facilities, and records to the commissioner and entities authorized by, or contracted with, the commissioner to conduct the inspections pursuant to this section and implement the educational program established pursuant to subsection c. of this section;

(2) Implements good hygiene and infection control practices that comply with standards set by the commissioner, including standards regarding all of the following: regular cleaning and disinfecting of surfaces, equipment, and other elements of the work environment; frequent and thorough hand washing; and the providing of soap, water, places to wash, and alcohol-based disinfectant hand rubs;

(3) Does not direct farm employees to work when sick and requires exposed employees to be quarantined for a time period deemed appropriate by public health officials if a farm employee tests positive or shows symptoms of a communicable or infectious disease or the farm employer otherwise has reason to believe that employees have been exposed to a communicable or infectious disease, and, in the case of farm employer-sponsored or farm employer-authorized transportation, housing, or dining facilities, provides, for employees who test positive or show disease symptoms, with facilities separate from other employees, and complies with the provisions of section 6 of P.L.2005, c.222 (C.26:13-16) and section 1 of P.L.2020, c.9 (C.34:11D-12) regarding reinstatement to employment;

(4) Implements policies to promote practices at farm worksites and in farm employer-sponsored or farm employer-authorized transportation, housing or dining facilities, when feasible and appropriate, to increase the physical distance, at the worksites and in the facilities, between employees and between employees and others; and

(5) Provides farm employees with the personal protective equipment deemed appropriate for use in the public health emergency or state of emergency by the department or the National Institute for Occupational Safety and Health; and

c. collaborate with the Commissioner of Labor and Workforce Development, the Commissioner of Environmental Protection, the Commissioner of Community Affairs, and the Secretary of Agriculture to develop and implement a comprehensive program of publicity and education to ensure that all farm employers and farm workers are informed about their rights and responsibilities under P.L. , c. (C. ) (now pending before the Legislature at this bill) and other public health, environmental, or labor laws applicable to farm employment, including the remedies provided to employees for violations of P.L.2005, c.222 (C.26:13-16). The program shall include on-site training, and posters and other materials providing agency contact information and other information regarding how farm workers may file complaints for retaliation or other violations of that act and the other applicable laws. Posters, forms, notifications, and media materials of the program shall be made available in the languages spoken by significant numbers of farm workers, and any on-site training shall utilize, to the extent practicable, representatives able to speak those languages at sites where the farm workers speak them. The participating departments, to the extent that they are not able to provide sufficient personnel to implement the program, may authorize or contract with other entities to assist in the implementation.

As an alternative to or in addition to any other sanctions provided by law, when the commissioner finds that a farm employer has taken any retaliatory action against farm worker for exercising rights provided by the provisions of P.L. , c. (C. ) (now pending before the Legislature as this bill), or has willfully violated any other provisions of that act, or any procedures contained therein, the commissioner is authorized to take an action to assess and collect an administrative fine of up to a maximum of $250 for a first violation and up to a maximum of $500 for each subsequent violation, specified in a schedule of penalties to be promulgated as a rule or regulation by the commissioner in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). When determining the amount of the penalty imposed because of a violation, the commissioner shall consider factors which include the history of previous violations by the employer, the seriousness of the violation, the good faith of the employer, and the size of the employer's business. Each week in which the violation occurs, and each worker subjected to the violation, shall constitute a separate offense. If an administrative penalty order has not been satisfied, the penalty may be recovered with costs by the commissioner in a civil action brought in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). The commissioner may undertake an action pursuant to this section in response to a complaint by one or more farm workers or an entity representing them. Any sum collected as a fine or penalty pursuant to this section shall be applied toward the department's costs of enforcement and administration of the provisions of P.L. , c. (C. ) (now pending before the Legislature as this bill).

6. This act shall take effect immediately.