Each year since 1976, the appropriations bill contains a rider that prohibits OSHA from spending funds on the enforcement of OSHA rules, regulations and standards for farming operations with 10 or fewer non-family employees.  And, there is no exception to this prohibition, such as for fatality or imminent danger cases.

OSHA has a directive on Enforcement Exceptions and as to farmers it states:

Enforcement Guidance for Small Farming Operations. The Appropriations Act exempts small farming operations from enforcement of all rules, regulations, standards or orders under the Occupational Safety and Health Act.

Under this enforcement guidance a farming operation is exempt from all OSHA activities if it: (1) Employs 10 or fewer employees currently and at all times during the last 12 months; and (2) Has not had an active temporary labor camp during the preceding 12 months. Note: Family members of farm employers are not counted when determining the number of employees.

On July 29, 2014, OSHA issued a “Policy Clarification on OSHA’s Enforcement Authority at Small Farms.”  In this policy, OSHA defines “farming operation” as:

Any operation involved in the growing or harvesting of crops or 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. Crop farming operations activities include preparing the ground, sowing seeds, watering, weeding, spraying, harvesting, and all related activities necessary for these operations, such as storing, fumigating, and drying crops grown on the farm.

The policy explains that OSHA considers onsite storage or the sale of grain on a farm as “related activity” and therefore small farms would still be exempt from OSHA jurisdiction.  However, OSHA claims that a small farm with grain handling operations for grain grown on other farms would not be exempt, nor would a small farm that has a food processing facility for items like processing cider from apples or milling flour and making baked goods.  These activities would be treated as grain handling and food processing operations and not small farming operations and therefore would be subject to OSHA jurisdiction even if they take place on a small farm.

A copy of the policy can be found online here.

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.

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