Agribusiness Workers Compensation: A Briefing for 2022

Almond Tree Shaker Harvesting for an Agribusiness

Farm work—while entrenched in American culture—is backbreaking work, which is why the machinery and technology innovations of the 20th century were a welcome replacement for much of the human labor. But unlike commodity crops like corn and soybeans, fruit, vegetable, and nut farms require the skill and physical capabilities of humans for harvesting and other critical tasks, leaving these agribusiness operations with the challenge of filling hazardous jobs from a shrinking labor pool.

Despite high injury and fatality rates, only 13 states require workers compensation with limited exceptions. Some states offer benefits for most farmworkers, but about half of all states exempt some portion of the workforce—usually migrant or seasonal workers. This is significant because immigrant farmworkers make up an estimated 73% of the U.S. agricultural workforce, and about half are undocumented.

The vast disparities in workers compensation regulation for agribusiness operations make it difficult to gather injury and illness data for hazard analysis, track the effectiveness of safety programs, and identify areas for improvement. This limitation sits atop the other challenges the industry faces in managing worker health and safety:

  • The agricultural labor market is complicated by labor shortages, immigration issues, an aging workforce, and a reluctance by workers to report incidents, which exacerbates worker injuries and reduces hazard interventions.
  • State regulators are all over the board, largely because of the divisive politics surrounding immigration—a few even go so far as to prohibit undocumented workers from receiving any workers compensation benefits.
  • Farming is dangerous work: According to the National Safety Council, Agriculture, Forestry, Fishing and Hunting are third in fatal work injuries, after Construction and Transportation/Warehouse, and first when it comes to preventable fatal work injuries.
  • Farmworkers are exposed to a broad spectrum of hazards from farm equipment and hand tools, ladders, stooping and squatting postures, chemical exposures, and heat and other outdoor risks.

This report is based on industry trends and our own discussions with Foresight leadership and broker partners. Keeping an open dialogue with our brokers and customers on worker safety and workers compensation trends, issues, and challenges helps us band together to mitigate the potentially deadly or life-altering risks inherent to agricultural work. We created this guide as a succinct reference tool to help you stay on top of critical trends such as:

  • Workforce
  • Regulatory
  • Loss Drivers & Safety Practices
  • Safety Technology
  • 2022 Outlook

Statistics Snapshot

  • A workforce powered by immigrants:  64% of farmworkers interviewed in the National Agricultural Workers Survey (NAWS) were born in Mexico, 32% in the U.S. or Puerto Rico, 3% in Central America; 77% of total were Hispanic; 30% of the U.S.-born were Hispanic. The number of temporary worker visas has nearly tripled in 10 years
  • Fewer workers, especially young male workers: Average age of foreign-born is 41.6; average age U.S. born is 36.7. 
  • Labor shortage driving higher labor costs: According to the California Farm Bureau Federation, 50% of farm operators in the state have failed to find the required number of workers for the last five years, and labor costs are trending upward.

How the Combination of an Aging, Mostly Immigrant Workforce Complicates Safety Management

Americans want more fresh fruits, vegetables, legumes, and protein-packed nuts in their diets, but what don’t they want? To work on the farms that grow them, at least to some degree. As the domestic labor pool slowly depletes, agribusiness operators have become more reliant on immigrant workers, both seasonal and year-round, to work their farms.

As a result, immigration patterns and laws have a direct impact on the agribusiness workforce. The H-2A visa program, which allows employers to host immigrant workers for up to three years on a seasonal basis, was meant to increase the labor supply, but farmers say the program is too restrictive, costly, and slow. Congress is working to modernize the program.

“The H-2A visa program is becoming more necessary to fill the labor shortage, especially for manually intensive crops such as strawberries and broccoli,” said Ricardo Macias Antunez, Business Development & Safety Manager for Safesite. “We hear from growers that the process has complex legal loopholes and needs to be easier to use.” 

Meanwhile, without comprehensive immigration reform, farm employers will continue to deal with an unpredictable (and diminishing) labor pool that is increasingly foreign-born and older, both of which bring difficulties in managing worker health and safety. 

How immigration and cultural issues affect workers comp risks

The exact number of immigrant farmworkers in the U.S. is difficult to pin down, but recent estimates put it at 73% of all agriculture workers in the U.S. today. About half of the workforce is undocumented. Most (80%) immigrant workers are considered “settled,” not migrant, and typically work at a single location within 75 miles of their home. The remaining workers either “shuttle” across an international border to get to the worksite, and a small percentage are “follow the crop” migrant workers who work in different states on different crops as the seasons change.

Understanding the culture, demographics, and immigration status of the agribusiness workforce makes it possible to recognize some of the obstacles in terms of managing worker health and safety. For example:

  • 63% of crop workers are most comfortable conversing in Spanish.
  • Workers may be reluctant to report claims for fear of retaliation, particularly if they are undocumented, which makes it more difficult to gather data for hazard identification and improvement.
  • Many immigrant crop workers are paid by production output, which means they may not take water or stretching breaks.
  • Many health clinics are reluctant to handle migrant workers compensation cases and others may not have the language skills or cultural understanding to effectively treat migrant patients. For example, sometimes they’re released to work “light duty” when no such thing exists.

Aging and farm work a painful combination

The physical, outdoor work of farming is difficult for people to perform as they age and makes them more susceptible to injury. Employers see production start to decline as workers age but have difficulty replacing them with younger workers.

The average age of farmworkers is increasing mainly because controls on the number of immigrants entering the U.S. result in fewer younger workers to replace those who’ve made up the majority of the workforce:

  • Over the past several years, the average age of hired farm laborers has increased from 35.8 years in 2006 to 38.8 years in 2017 and continues to climb.
  • The age increase is even more pronounced among foreign-born laborers: from 35.7 in 2006 to 41.6 in 2017, an increase of 16%.

The link between aging and injury frequency and severity is apparent across the entire workforce but is more pronounced with jobs such as farm work. The National Council on Compensation Insurance (NCCI) reports:

  • Injury frequency has increased for four consecutive years for workers 65 and older, even though frequency has been declining for years for workers ages 25-44.
  • Older workers tend to have more days away from work for all injury types.

Statistics Snapshot

  • According to research, only 13 states require employers to provide workers compensation coverage for agricultural workers no matter how many workers they employ.
  • At least 15 states don’t require employers to provide workers compensation for migrant, seasonal, or farm/ag workers.
  • In other states, coverage is limited to special categories of agricultural workers such as full-time, specialized, proportion of full-time to part-time, and other parameters.
  • Employers using the H-2A visa program are required to provide workers compensation or an equivalent benefit.

Wide variations and frequent changes in state laws

State requirements regarding workers compensation for agricultural workers range from strict requirements to provide it to all workers, to requirements prohibiting it for undocumented workers, and everything in between. For this reason, employers are best advised to work closely with workers compensation experts and their attorneys. 

According to Farmworker Justice, some states are using the U.S. Supreme Court’s 2002 decision in Hoffman Plastics v. NLRB, 535 U.S. 137, 122 S. Ct. 1275, 152 L. Ed. 2d 271, to limit or eliminate benefits for undocumented workers. Some examples:

  • Michigan and Pennsylvania courts ruled that injured undocumented employees could receive medical benefits, but not lost wages.
  • Maine courts ruled to prohibit undocumented workers from receiving any workers compensation benefits.

Could Covid-19 presumption make a difference?

During the pandemic, many states added Covid-19 to presumption laws, which shifts the burden of proof that an injury or illness is job-related from the employee to the employer to prove it’s not. These law changes, which may or may not remain permanent, could turn the tide toward providing workers compensation benefits to more farmworkers.

Covid-19 presumptions for frontline and essential workers included farmworkers, making many of them eligible for workers compensation benefits for the first time. Attitudes could change, and more states might expand coverage to include agricultural workers under general workers comp statutes.

Statistics Snapshot

  • The latest Bureau of Labor Statistics (BLS) data says transportation incidents were the leading causes of fatalities on farms followed by contact with objects and equipment; violence and other injuries by persons or animals; slips, trips, and falls; and exposure to harmful substances or environments.
  • 2020 BLS data says the incidence rate for days-away-from work for crop production workers was 1.7 cases per 100 full-time workers for fruit and tree nut farming 1.8 and 1.5 cases for greenhouse, nursery, and floriculture production workers. 
  • An increase in deaths from all-terrain vehicles (ATVs) used on farms prompted a National Institute of Occupational Safety and Health (NIOSH) study that identified 2,090 injuries and 321 fatalities in an eight-year span.

Leading causes of fatalities

According to the National Safety Council, agriculture ranks first in terms of preventable fatal injuries. The dangerous machinery and vehicles used in farming are behind the vast majority of these fatalities. Transportation incidents are the leading cause of fatalities on farms. Although most can be attributed to tractors, others involve employees hit by other vehicles and ATV accidents. 

Tractor rollover deaths have gone down dramatically since OSHA started requiring rollover protective structures (ROPS) for agricultural tractors. But the type of low-profile tractors used in orchards, vineyards, or greenhouses, where vertical height would interfere with normal operations, are exempt from the ROPS standard.

The chart below shows fatality statistics gathered by BLS, but it should be noted that they include forestry, fishing, and hunting.

Leading causes of injuries resulting in lost days away from work

According to the CDC, about 100 agricultural workers in the U.S. suffer a lost-time injury every day. The high risk of agricultural safety and health became such a concern that in 1990 NIOSH implemented an extensive program to address the problem. The chart below shows the leading causes of injuries resulting in lost days from work.

Emerging injury and health risks

While most causes of injury and illness in agribusiness operations have not changed dramatically over the years, some are prompting more study and attempts to mitigate them. For example:

  • An Iowa State University study examined time spent stooped and squatting while working certain ground crops and the association with lower back disorders found that squatting and stooping put more strain on the lower back than kneeling, and suggested workers should alternate between the various postures.
  • Ladders are a frequent source of farming injury, particularly where they’re used for harvesting in orchards and groves. A Washington State study found that more workers compensation claims in that state come from orchard workers than any other type of agricultural worker.
  • Heat illness is an increasing problem for farmworkers, prompting some states like California to regulate water breaks and other controls. A UC Davis study of 587 farm workers (all of which complied with Cal/OSH HRI prevention regulations) found nearly 8% of workers were at risk of heat-related illnesses.

Characteristics of an effective agribusiness safety program

Because hazards vary substantially by the type of crops grown and farm work being performed, farm operations should customize their hazard controls, but the OSHA recommendations most pertinent to fruit, vegetable, and nut farms and groves include:

  • Hazardous equipment and machinery, including tool maintenance, power tool usage and proper PPE
  • Heat-related illness prevention through water, rest, and shade
  • Ladders and fall prevention through proper training and ladder maintenance
  • Musculoskeletal injuries prevented through ergonomic controls of repetitive motion, carrying heavy objects, and awkward postures
  • Controls for pesticides and other chemicals, such as training, proper PPE, and hazard communication
  • Unsanitary conditions such as lack of drinking water, sanitation facilities, and handwashing facilities
  • Vehicle safety including vehicle operation and storage, rollover prevention, tractor hazards such as power take-off (PTO) shafts, and ATVs

Since the first steam-powered farm machinery, agriculture has been an early adopter of automation and robotics. However, much of the technology that has reduced reliance on human labor and the injuries that come with it have centered around large, commodity crop production. However, some companies are developing sensory devices that will improve labor-intensive harvesting duties, including tree nuts and row crops.

Mechanical aids have recently been introduced that can help with some of the heavier duties on crop farms: hydraulic platforms that replace ladders in orchards, mobile conveyor belts that reduce the distance for carrying heavy loads in the fields.

“Ergonomics training is lacking in a lot of the operations we see, and having training programs easily available on smartphones and in the employees’ language can make a big difference,” commented Ricardo Macias Antunez, Business Development & Safety Manager for Safesite. “We also see agribusiness operators using loss data in creative ways to help them make better safety decisions as well as other strategic business decisions.”

The slow pace of safety technology adoption in labor-intensive agribusiness operations combined with the lack of injury and illness data gathered on a large scale, make it critical to find ways to use existing platforms and tools to improve worker safety training, incident data gathering and analysis, and compliance recordkeeping.

2022 Outlook for Agribusiness

The United States has abundant and fertile land, and working the land is a time-honored occupation.  Keeping this proud tradition going–along with the large part agriculture plays in our economy—demands a robust workforce and employers with the right tools to keep them working productively and safely.

Technology exists today that could help agribusiness employers address the workforce, regulatory, and loss trends discussed in this guide:

  • Inexperienced workers engaging with digital behavior-based safety tools and training available on handheld devices and in their native language learn safe behaviors faster and more effectively, reducing accidents.
  • Digitized OSHA recordkeeping, incident reporting, inspections, and audits help keep employers compliant and aware of changing regulations.
  • Data gathered and analyzed from wearables, digitized incident reports, and employee observations quickly indicates safety problems so they can be addressed immediately.

Unless the U.S. wants to import the majority of our fresh food supply, we need to help farm operators keep their farms running productively and profitably. Helping them keep workers safe and healthy in a way that doesn’t add to their escalating labor costs can have immediate and lasting results.

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