State Guides to Workers Compensation

Although agriculture is one of the nation’s most hazardous industries, about half of all states allow agricultural employers to provide little or no workers compensation coverage for migrant and seasonal farmworkers. Workers compensation benefits are secured by insurance policies, paid for by the employer. Each state has its own standards and rules. When a covered worker suffers a job-related injury or illness, she can receive medical benefits and/or a portion of her lost wages, if she files a workers compensation claim and that claim is approved.  

There are many obstacles preventing farmworkers from securing needed workers compensation benefits. They include: lack of coverage; a small, but growing trend for states to reduce or deny benefits to undocumented workers; workers’ reluctance to file claims for fear of employer retaliation; and the difficulty of finding a doctor who will keep farmworkers off work long enough to allow them to fully recover.  Without workers compensation benefits, however, injured farmworkers often forgo needed treatment or go into debt to obtain it.

Many states do not require agricultural employers to provide workers compensation coverage for migrant and seasonal farmworkers. The states are almost evenly split between those that provide all or most migrant and seasonal farmworkers with workers compensation coverage and those that require little or no coverage for this workforce. Specifically, only 13 states, the District of Columbia, Puerto Rico and the Virgin Islands require employers to cover seasonal agricultural workers to the same extent as all other workers. These jurisdictions are: Arizona, California, Colorado, Connecticut, the District of Columbia, Hawaii, Idaho, Massachusetts, Minnesota, Montana, New Hampshire, New Jersey, Ohio, Oregon, Puerto Rico and the Virgin Islands.  In an additional 13 states (including Florida and New York), only small farmers are exempt from providing coverage to their migrant and seasonal farmworkers. Moreover, employers who hire legal temporary foreign workers, under the H-2A visa program, are required to provide workers compensation insurance or equivalent benefits to their employees.

By contrast, 16 states do not require employers to provide any workers compensation insurance for migrant or seasonal farmworkers. These states are: Alabama, Arkansas, Delaware, Georgia, Indiana, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Dakota, South Carolina, Tennessee and Texas. In an additional eight states, coverage is limited to full-time workers (e.g., Maine),   workers in specialty jobs (e.g., South Dakota), or those employed on large farms (e.g., Rhode Island).

Another worrisome trend is that states are beginning to follow the U.S. Supreme Court’s decision in Hoffman Plastics v. NLRB, 535 U.S. 137, 122 S. Ct. 1275, 152 L. Ed. 2d 271 (2002), and limit or eliminate benefits for undocumented workers.  For example, in Michigan and Pennsylvania, courts have ruled that injured, undocumented employees could receive medical benefits, but not replacement wages. In Maine, the legislature has gone even further, prohibiting undocumented workers from receiving any workers compensation benefits.   

Due to the vulnerability of this workforce, employer threats of retaliation keep many farmworkers from filing workers compensation claims, even when they are eligible for benefits. While this practice is illegal, few cases are successfully prosecuted. This is due, in part, to the fact that undocumented workers are not eligible for federally funded legal services and that many workers would rather forego their claim than risk losing their jobs.

Finally, farmworkers face obstacles in finding a doctor who will handle their workers compensation cases. Many migrant clinics are reluctant to handle such cases and other clinicians may not have the language skills or cultural competency to effectively treat migrant patients. In addition, clinicians may not be well informed about the workers compensation rules in their state. One common problem is that farmworkers are released to return to work to do “light duty,” even though no such tasks exist at their workplace. As a consequence, these workers face the Hobson’s choice of returning to work where they risk re-injuring themselves or refusing to return and suffering the loss of benefits. 

Farmworker Justice is working with other groups to improve workers’ access to workers compensation benefits. For example, we are asking the American Public Health Association to pass a resolution in 2006, to urge all states to require full coverage for migrant and seasonal farmworkers. (For a copy of the resolution, click here.)  In addition, we are working with the Migrant Clinicians Network to educate clinicians about the workers compensation system, so that more clinics are able to handle such cases.

Proposed Resolution for the American Public Health Association

Increase Workers Compensation Coverage For Migrant and Seasonal Farmworkers

The nation’s 2.5 million migrant and seasonal farmworkers [1] are employed in one of the most hazardous industries in the US. Yet in many states agricultural employers are not required to provide these workers with workers compensation insurance to protect them when they suffer a job-related illness or injury.  Even where migrant and seasonal farm laborers are covered, many will receive reduced or no benefits because they are undocumented. Further, fear of employer retaliation keeps many farmworkers from filing claims, even when they are eligible. As a result of these policies and practices, many farmworkers who suffer work-related injuries or illnesses forgo needed medical care or go into debt to obtain it.

High Rates of Work-Related Injuries: Agriculture consistently ranks as one of the nation’s three most hazardous industries. In 2004, the combined category of agriculture, forestry, fishing and hunting had the highest on-the-job fatality rate of any occupational group: 30.1 per 100,000 workers. [2] This fatality rate was more than seven times higher than the rate for all workers of 4.1 per 100,000. [2]   In terms of absolute numbers, workers in the combined agricultural group suffered 11.6 percent of all fatal on-the-job injuries. The most frequent cause of these workplace fatalities in agriculture was accidents involving motor vehicles, including tractors. In Florida, for example, 41 percent of farm workers’ 1990 occupational fatalities were related to transportation. [3] Other causes include farm equipment, falls, drowning, and electrocution.  

Stooping to plant or pick row crops, working on ladders while holding sacks weighing 50 to 100 lbs, sorting and packing vegetables at a rapid pace, and mixing, loading or applying toxic pesticides, are some of the tasks leading to non-fatal farmworker injuries. In 2004, the non-fatal injury rate for workers in crop agriculture was 5.1 per 100 workers [4] with 3.3 cases per 100 workers involving lost work time. [5] These injuries included fractures due to falls, eye injuries from chemicals or debris ejected from machinery, lacerations from knives and machetes, strains, sprains and repetitive motion injuries from bending, lifting, and sorting, and a host of crush, contusion, and amputation injuries from working with farm equipment. [6] A NIOSH study of workers’ compensation records from 1985-1987 found that sprain and strain injuries account for 37.2 percent of all claims filed by farm workers. [7]   In the absence of a national incident reporting system, the EPA estimates that 10,000-20,000 farmworkers are injured by pesticides each year. [8]

Demographic Profile of Migrant and Seasonal Farmworkers: Most migrant and seasonal farmworkers are young, male immigrants. Approximately 80 percent of migrant and seasonal farmworkers are employed in crop agriculture. The National Agricultural Workers Survey (NAWS), covering crop workers, reports that most (79 percent are male) and their average age is 33.[9]  The majority (seventy-eight percent) are foreign-born, with most (75 percent) coming from Mexico, 2 percent coming from Central America and 1% from other countries (e.g., Asia or the Caribbean).[9] Most crop workers (53 percent) are undocumented. [9] An additional 43,000 foreign workers enter the US legally each year under the temporary foreign agricultural worker (H-2A) program.

Language Barriers Contribute to a Lack of Safety Information or Adequate Training: Language barriers contribute to the inadequate training of farmworkers. Altogether, for both US- and foreign- born crop laborers, Spanish is the primary language of 81 percent of the workforce.[9]  Only 25 percent of crop workers report being able to speak or read English well. [9]  Moreover, an estimated 300,000 farmworkers are  indigenous people from Mexico or Guatemala, who speak  pre-Columbian languages, including Mixteco, Trique and Zapoteco, which are oral, not written. Other migrants speak Haitian Creole, Hmong, Thai, and other languages. Even though federal law requires that all workers receive pesticide safety training in a language that they understand, this requirement is all too often honored in the breach – and many workers do not receive any training at all. [10, 11]

Farmworkers have Few Federal Labor Law Protections: Agricultural workers are wholly or partially excluded from many federal labor law protections. For example, farmworkers are not guaranteed the right to organize and bargain collectively under the National Labor Relations Act, they are not entitled to overtime pay under the Fair Labor Standards Act, and they are only covered by seven Occupational Safety and Health Administration (OSHA) standards, even though far more of the hazards regulated by OSHA in general industry or construction also pose serious risks to agricultural workers. [12]

Many States Do Not Require Agricultural Employers to Provide Workers Compensation Coverage for Migrant and Seasonal Farmworkers: The states are almost evenly split  between those that provide all or most migrant and seasonal farmworkers with workers compensation coverage  and those that require little or no coverage for this workforce. Specifically, only 13 states, the District of Columbia, Puerto Rico and the Virgin Islands require employers to cover seasonal agricultural workers to the same extent as all other workers. These jurisdictions are: Arizona, California, Colorado, Connecticut, District of Columbia, Hawaii, Idaho, Massachusetts, Minnesota, Montana, New Hampshire, New Jersey, Ohio, Oregon, Puerto Rico and the Virgin Islands.  In an additional 13 states (e.g., Florida and New York) [13, 14] , only small farmers are exempt from providing coverage to their migrant and seasonal farmworkers.

By contrast, 16 states do not require employers to provide any workers compensation insurance for migrant or seasonal farmworkers. These states are: Alabama, Arkansas, Delaware, Georgia, Indiana, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Dakota, South Carolina, Tennessee and Texas. In an additional eight states, coverage is limited to full-time workers (e.g., Maine) [15],   workers in specialty jobs (e.g., South Dakota) [16] or those employed on large farms (e.g., Rhode Island).[17].

Another worrisome trend is that states are beginning to follow the U.S. Supreme Court’s decision in Hoffman Plastics v. NLRB, 535 U.S. 137, 122 S. Ct. 1275, 152 L. Ed. 2d 271 (2002), and limit or eliminate benefits for undocumented workers.  For example, in Michigan and Pennsylvania, courts have ruled that undocumented employees with work-related injuries could receive medical benefits, but not replacement wages. [18, 19]   In Maine, the legislature has gone even further, prohibiting undocumented workers from receiving any workers compensation benefits. [20]. 

Finally, due to the vulnerability of this workforce, employer threats of retaliation keep many farmworkers from filing workers compensation claims, even when they are eligible for benefits. While this practice is illegal, few cases are successfully prosecuted. This is due, in part, to the fact that undocumented workers are not eligible for federally funded legal services and that many workers would rather forego their claim than risk losing their jobs.

Therefore, be it resolved that:

 1. All states should require workers compensation coverage for migrant and seasonal farmworkers to the same extent as coverage is provided to all other workers. This would require 16 states to mandate workers compensation coverage for this segment of the workforce where none currently exists. They are: Alabama, Arkansas, Delaware, Georgia, Indiana, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Dakota, South Carolina, Tennessee and Texas.   In addition, the following eight states must increase coverage to include farmworkers employed less than full-time, workers employed on small farms and workers not engaged in specialty occupations. These states are: Alaska; Maine; Michigan; North Carolina; Oklahoma; Rhode Island; South Dakota and Wyoming.

2. All states should provide workers compensation benefits to undocumented workers to the same extent as they are provided to legally authorized workers. This would require changes in the law in Maine, Michigan, Pennsylvania, and Wyoming.

3. All states should protect farmworkers, who file workers compensation claims, from employer retaliation. This could be accomplished by establishing a presumption of retaliation, whenever a worker is fired, demoted, not rehired or otherwise discriminated against within 90 days of filing a workers compensation claim or informing a medical provider that she/he has suffered a work-related illness or injury.

 Endnotes:

        1         U.S. Commission on Agricultural Workers, Report of the Commission on Agricultural
                Workers 1992

2         U.S. Department of Labor, Bureau of Labor Statistics, Current Population Survey, Census of Fatal Occupational Injury and U.S. Department of Defense, Number and Rate of Fatal Occupational Injuries by Private Sector, 2004, www.bls.gov/iif/oshcfoi1.htm#2004

3         Becker W.J., An Analysis of Agricultural Accidents in Florida – 1990, Agricultural Engineering Department, Special Series, Report SS-AGE-25, Gainesville, FL, University of Florida (1991)

4         U.S. Department of Labor Statistics, Table 5 – Injury Cases-Rates, Numbers and Percent Relative Standard Errors by Injury – 2004, SNR05 12-18-04, www.bls.gov/iif/oshwc/osh/oc/ostb1479.txt

5         U.S. Department of Labor, Bureau of Labor Statistics, Table Q2 – Incidence Rates of Days Away from Work, Job Transfer, or Restriction Cases Non-fatal Occupational Injuries and Illnesses, by Quartile Distribution and Employment Size, Private Industry, 2004, www.bls.gov/iif/oshwc.

6         Wilk, Valerie, Occupational Health and Safety of Migrant and Seasonal Farmworkers in the United States (1986)

7         Bobick, T.G. and Myers, “Agricultural-related sprain and strain injuries; 1985-1987,” International Journal of Industrial Ergonomics. 1993

8         U. S.  Environmental Protection Agency, Worker Protection Standard, Economic Impact Statement (1993).

9         U.S. Department of Labor, Office of the Assistant Secretary for Policy, Office of Programmatic Policy, Findings from the National Agricultural Workers Survey (NAWS) 2001-2002: A Demographic and Employment Profile of United States Farm Workers, Research Report No. 9, March 2005

10      Villarejo, Don, et al.  Suffering in Silence:  A Report on the Health of California’s Agricultural Workers.  California Institute for Rural Studies.  November 2000.  

11      Jackson, K, Hidden Costs:  Farmworkers Sacrifice Their Health to Put Food on Our Tables, August 2002

12      Oxfam America, Like Machines in the Field:  Workers Without Rights in American Agriculture, Oxfam America, Make Trade Fair (2004).

13      Florida Workers’ Compensation Law, Florida Statutes, Chapter 40; 

14      New York Worker Compensation Law, McKinney’s Consolidated Laws of New York Annotated, Chapter 67

15      Maine Revised Statutes Annotated Title 39-A, section 401 2004

16      South Dakota Workers Compensation Law, Laws of South Dakota, Chapter 62

17      Rhode Island’s Workers Compensation Act, General Laws of Rhode Island Annotated 1956 Title 28

18      Sanchez v. Eagle Alloy Inc., 254 Michigan App. 651, 658 N.W.2d 510 (Michigan.App., 2003);

19      Reinforced Earth Co. v. Workers' Compensation Appeals Board, 810 A.2d 99 (Pennsylvania 2002).   

20      Maine Revised Statutes Annotated Title 26,§1192