While OSHA regulations apply generally to all employers, Congress has created certain exceptions to OSHA’s jurisdiction. One such exception is for small farms. Ever since 1976, Congress has mandated that OSHA cannot use federal funds to enforce any regulation on a “farming operation” with fewer than ten employees which does not maintain a temporary labor camp.
Therefore, if a farm employs ten or more full-time or part-time employees, the farm is subject to OSHA enforcement. These larger farms must comply with certain OSHA regulations as well as the General Duty Clause. The General Duty Clause allows OSHA to cite an employer for a violation when there is no specific OSHA regulation that is applicable. Under the General Duty Clause, an employer must keep employees free from recognized hazards that are likely to cause death or serious physical harm.
A few years ago, in response to a number of deaths that occurred in grain bins, OSHA began targeting dangers related to grain bins. Many of these grain bin deaths occurred on unregulated small farms. Because OSHA is prohibited from regulating small farms, OSHA began to classify the grain bins located on small farms as separate “post-harvest processing facilities.” On June 28, 2011, OSHA published a memo which stated that OSHA has jurisdiction to regulate “post-harvest activities” which may occur on an otherwise exempt small farm. This controversial memo also broadly defined post-harvest activities to include drying, cleaning, shelling, curing, sorting, grading, packing, and cooling.
OSHA used this June 28, 2011 memo to justify enforcement activities on small farms across the country. For example, a family farm in Nebraska with one employee was cited with a $132,000.00 penalty resulting from an inspection of its grain bins. One of the violations included a failure to have a written plan to control fugitive grain dust. Moreover, no actual injuries were alleged.
Late last year, in response to OSHA’s enforcement activities on small farms, forty-three United States senators sent a letter to OSHA criticizing OSHA’s view of grain bin operations as distinct from a small farm’s operation and demanding that all such enforcement actions cease. Shortly thereafter, ninety-one members of the United States House of Representatives issued a similar letter.
In response to the demands of the members of Congress, OSHA issued a response which withdrew the controversial January 28, 2011 memo. Despite the withdrawal of the memo, OSHA said that the memo did not change longstanding OSHA policy. OSHA further said it will issue new guidance on the distinction between small farming operations and post-harvest activities in the future. In the meantime, the precise distinction remains unclear.
Despite the applicability of OSHA regulations, entrapment in grain bins is a real danger, and farmers with grain bins should review their grain bin safety practices with their employees. While the rules are complex, OSHA tends to place particular emphasis on requirements that employees turn off and lock out powered equipment such as augers while entering a bin and not walk on grain without an appropriate body harness. OSHA rules also require the positioning of an observer outside the bin to provide assistance.
If you have questions concerning the applicability of OSHA regulations to your farm and the specific requirements of OSHA regulations, please contact an attorney.
This article was written for informational/education purposes. The scope of OSHA jurisdiction is properly determined on a case-by-case basis. If you have specific legal questions, consult your attorney. This column is not a substitute for legal advice.
The old adage that OSHA regulations do not apply to farms is not entirely correct. In recent years, OSHA has been seeking to expand its jurisdiction into previously unregulated small farms.
To provide a little background, under federal law, OSHA has the ability to inspect a workplace. This inspection is often triggered by a complaint made by an employee or if an accident has occurred. If OSHA finds a violation during the inspection, it may issue a citation and propose penalties up to $70,000.00 for each wilful violation.