By Kristi Kress Wilhelmy
Editor’s Note: Today we attempt something a little different and take a break from Paul and Ashley posting. The following article was written by Kristi Kress Wilhelmy, a partner at Barrett, Easterday, Cunningham & Eslegroth, LLP in Dublin, OH. We would like to thank Kristi for allowing us to repost this timely article on the Occupational Safety and Health Administration’s (OSHA) small farm exemption and the confusion that surrounds it. The following article first appeared in the Ohio Country Journal on July 28th, 2014.
Updated August 5: On July 29, 2014, OSHA issued a new memorandum regarding the limits of its authority to conduct enforcement activities on small farms. In the new memorandum, OSHA acknowledges that the onsite storage of grain grown on the small farm is an activity related to the farming operation and that engaging in such activity does not subject a small farm to OSHA enforcement. Likewise, storing and grinding grain to be fed to livestock on the small farm is an exempt activity. OSHA continues to explain, however, that not all activities on a small farm are exempt from OSHA enforcement. If an employer performs activities on a small farm that are not related to the farming operation or activities that are not necessary to gain economic value from the products produced on the small farm, such activities are not exempt from OSHA enforcement. For example, OSHA states that if a small farm stores grain that has been grown on other farms, the grain handling operation is not be exempt from OSHA enforcement. Similarly, OSHA notes that food processing operations conducted on the farm (e.g., making cider from apples grown on the farm or milling into flour grain grown on the farm) are not exempt from OSHA enforcement.
The oft discussed acronym OSHA continues to be an issue for farms and there is still confusion as to what is exempt from inspection and what is not.
Historically, Congress through the Appropriations Act, has exempted small farming operations from the enforcement of all rules, regulations, standards or orders under the Occupational Safety and Health Act (OSHA). Specifically, the language in the Appropriations Act stipulates that OSHA appropriated funds cannot be used to enforce OSHA rules and regulations on small farms. Not all farming operations are exempt. Rather, a farming operation is exempt from OSHA enforcement only if the farm meets two criteria: 1) the farm employs 10 or fewer employees currently and at all times during the last 12 months; and 2) the farm has not had an active temporary labor camp during the proceeding 12 months. If either of these criteria do not apply, the farm is not exempt from OSHA enforcement. A “farming operation” is any operation involved in the growing or harvesting of crops, the raising of livestock or poultry, or related activities conducted by a farmer on sites such as farms, ranches, orchards, dairy farms or similar farming operations. A “temporary labor camp” means farm housing directly related to the seasonal or temporary employment of farm workers.
The small farm exemption came under fire in 2013 when OSHA began inspecting and issuing citations to farming operations. In 2011, OSHA issued a guidance memorandum to its inspectors asserting that on-farm grain storage and handling was not part of the “farming operation” and that OSHA had the authority to inspect such facilities and enforce its rules and regulations, thereby gutting the small farm exemption. Based on this memorandum, OSHA began inspecting farms with grain storage and handling facilities. Citations were issued to a farm in Nebraska and to a farm in Ohio. When OSHA began issuing citations to farms, farming organizations and senators and representatives from farming states took notice. Our office was fortunate enough to represent the farmer here in Ohio that was inspected and cited by OSHA. On behalf of the Ohio farmer, we contested the citations OSHA issued, and in the face of increasing public pressure, OSHA promptly withdrew the citations. Congress reinforced the small farm exemption in the omnibus appropriations bill in 2014, and encouraged OSHA to work with the United States Department of Agriculture (USDA) before attempting to redefine and regulate post-harvest activities such as grain storage and handling. In response, OSHA withdrew the 2011 guidance memorandum which asserted that on-farm grain storage and handling was not part of the farming operation, and pledged to work with the USDA.
Today, the small farm exemption still exempts small farming operations from enforcement of all OSHA rules, regulations, and standards. It should be noted, however, that while OSHA may be prohibited from enforcing OSHA rules and regulations on small farm employers, OSHA maintains its position that small farm employers are obligated to comply with OSHA standards.
Additionally, as the size of farming operations continue to grow, more and more farms will no longer meet the definition of small farm. Many farms now employ more than 10 employees. Many farms may also wrongly believe they have fewer than 10 employees based on an incorrect assumption that certain family members are not counted as employees. OSHA guidance suggests that “family members” of farm employers are not counted when determining the number of employees for purposes of the small farm exemption. “Family member,” however, is not clearly defined. If “family member” means only immediate family members, then cousins, grandchildren, nieces, nephews, aunts, uncles, etc., may be considered when calculating the number of employees. Along those same lines, if the farming operation (i.e., employer) is a corporation or a limited liability company, OSHA may take the position that all family members are counted for purposes of determining the number of employees. As a result, many farms may be subject to OSHA enforcement despite the small farm exemption.