When can OSHA investigate death or serious injury of a farm owner?

By: Karl Czymmek and Tonya Van Slyke

Owners and employees in family farm businesses often have close relationships, so when unexpected tragedy strikes, beyond a serious injury or precious loss of a life, it is often that much more difficult because a friend or family member is involved. Recent farm tragedies in NYS have raised the question of when may OSHA investigate an owner-related death or serious injury? Owners are exempt, right? Not so fast. The following points were developed based on recent conversations with OSHA staff:

1. ANY farm death or serious injury (owner or employee) that comes to the attention of OSHA staff will trigger a visit to the operation as soon as possible. Unfortunately for the family, this visit will likely come at a time when they are grieving, planning for funeral services and grappling with how to fill the work role left by the person involved. OSHA staff are trained to be sensitive in these situations.
2. A first step in a visit is for OSHA staff to determine if the farm is exempt from enforcement action by asking for the highest number of employees in the past 12 months and if the farm has/had an active, temporary labor camp in the previous 12 months.¹ Owners, spouses and their children if employed by the farm are not included in the total employee count for this purpose.²  If there were 11 or more non-family employees at any one time in the past 12 months, or if the farm has/had an active temporary labor camp in the same period, then the operation is not exempt from OSHA enforcement (hereafter “non-exempt”). Under these circumstances, OSHA will investigate the death or serious injury, even if the victim had an ownership interest in the business.
3. Owners and family members are not included in the OSHA employee count, and owners are not required by OSHA to follow farm or OSHA safety rules in practice. Yet ANY death or serious injury on a non-exempt farm can be investigated and this could ALSO trigger an expanded inspection beyond factors directly contributing to the death or serious injury and may be expanded to a full comprehensive inspection. These decisions are made by OSHA inspectors based on what is observed at the operation.
4. Non-exempt farms “are required to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation or loss of an eye.” Fatalities must be reported to OSHA within 8 hours; in-patient hospitalization, amputation or eye loss must be reported within 24 hours. OSHA provides a resource to help employers know what must be reported: see https://www.osha.gov/report.html for the most up to date reporting information and detail.
5. Exempt farms (less than 11 non-family employees that have not had an active temporary labor camp in the past 12 months) are not required to report a death or serious injury to OSHA, BUT, it may be smart to do so anyway. WHY? Because if OSHA learns about the death or serious injury, and this is happening with greater frequency, they will visit the farm- and they have no idea before arriving if the farm is exempt or not. Exempt farms can avoid the visit if they report the death or serious injury to OSHA and let them know there are fewer than 11 non-family employees at the operation and that they have not had an active temporary labor camp in the last 12 months. See the link in item 4 above for contact information to make a report.

Please contact Karl Czymmek (kjc12@cornell.edu) or Tonya Van Slyke (tonya@nedpa.org) if there are additional questions or clarifications generated by this article so that we can work with OSHA staff to get answers and communicate the information industry-wide so that all may benefit.

¹ To be considered a temporary labor camp, housing maintained by a farm is provided: (1) as a required condition of employment; and (2) for a discrete, temporary period of time (i.e., for seasonal or temporary employment). Housing provided to year around dairy workers does not constitute a temporary labor camp. See the OSHA letter published in PRO-DAIRY e-Alert, September 24, 2014.

² Immediate family member means those in direct relation to the farm employer, such as parent, spouse, or child. Step-children, foster children, step-parents and foster parents will also be considered as immediate family members. Reference: Fair Labor Standards Act, 29 CFR 780.308 “Definition of immediate family” regarding exemptions under minimum wage and overtime provisions.

NYS OSHA Work Group:

• PRO-DAIRY
• Northeast Dairy Producers Association (NEDPA)
• New York Farm Bureau
• NY Center for Agricultural Medicine and Health (NYCAMH)
• Cornell Cooperative Extension

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