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Daily News Blog

29
Mar

Bill Seeks to Eliminate Inequities for Child Farmworkers, But Leaves Weak EPA Pesticide Standards in Place

U.S. Senator Ben Ray Luján (D-NM) introduced S.4038, the Children’s Act for Responsible Employment and Farm Safety (CARE), aiming to elevate labor standards for child farmworkers in the agricultural sector as protection from pesticides remain weak.

(Beyond Pesticides, March 29, 2024) Last week during National Agriculture Week, U.S. Senator Ben Ray Luján (D-NM) introduced S.4038, the Children’s Act for Responsible Employment and Farm Safety (CARE), aiming to elevate labor standards for young workers in the agricultural sector, as protection from pesticides remains weak. Currently, agriculture stands as the sole industry that permits children—as young as 12 years old—to work without significant limits on their hours of employment outside of school time. This scenario is a reality for hundreds of thousands of children across the U.S., who undertake the demanding tasks of planting, harvesting, processing, and packaging the food produced nationwide.

The CARE Act proposes to align the age and working hour criteria for underage workers in agriculture with those enforced in other sectors. Additionally, the legislation seeks to toughen both civil and criminal penalties for violations of child labor laws and to enhance safeguards for children against the risks of pesticide exposure. It is important to note, however, that the CARE Act would exempt farm-owning families, allowing their children to work on the family farm under the current guidelines.

Exemptions to the Fair Labor Standards Act (FLSA) currently allow children to work unlimited hours, outside of school  hours, in “non-hazardous” agricultural at the age of 12 and child farmworkers may perform may perform any agricultural job, including hazardous work, as of the age of 16. These exemptions apply only to farm labor and are significantly less stringent than laws applying to other sectors. 400,000-500,000 children and youth between the ages of 12-17 are estimated to be working in U.S. agriculture, with children ages 12-13 permitted to work in agriculture outside of school hours. Children ages 14-15 may work in nonagricultural jobs only with strict limitations on time of day and hours per week, but may work in agriculture outside of school hours without any restrictions. S.4038 will make the restrictions for agriculture child labor consistent with non-agriculture labor. Note: The CARE Act would not apply to the children of farmers working on their family farm.

Related legislation, the Fairness for Farm Workers Act (H.R. 4579/S. 2253), introduced in 2023 by U.S. Representative Raúl Grijalva (D-AZ) and U.S. Senator Alex Padilla (D-CA), would amend FLSA to provide overtime and additional minimum wage protections for farm workers. Upon introduction, Senator Padilla said, “It’s past time we correct our nation’s labor laws to include the farm workers who have been unjustly excluded from protections.”

Disproportionate Impact and “Agricultural Exceptionalism”

Creating true equity for farmworkers and specifically farmworker children, advocates point out, would require an overhaul of the laws governing pesticide use and exposure. Current law governing pesticide registration by the U.S. Environmental Protection Agency (EPA) is challenged as not adequately protective. The Food Quality Protection Act (FQPA), which amends the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA), specifically excludes occupational exposure to pesticides from the calculation of cumulative or aggregate health risk from dietary and nondietary exposure. This means that children’s exposure to pesticides while employed in agriculture is excluded when determining the acceptable rates of their overall pesticide exposure. The statutory language of FQPA requires EPA to evaluate all exposure to the residues in food, water, and land of pesticides with a “common mechanism of toxicity” (e.g., families of chemicals like organophosphates and synthetic pyrethroids), but does not require that occupational exposure be included in that calculation.

A report released in January, US pesticide regulation is failing the hardest-hit communities. It’s time to fix it, finds “people of color and low-income communities in the United States and around the world continue to shoulder the societal burden of harmful pollution.” More specifically, the authors state that “ongoing environmental injustice is the disproportionate impact these communities suffer from pesticides, among the most widespread environmental pollutants.” The report, which follows an earlier article (see earlier coverage), documents the long history of “agricultural exceptionalism,” whereby agriculture is specifically excluded from many U.S. labor and occupational safety laws, can exacerbate the well-documented pesticide risks that farmworkers face on the job. 

What is the CARE ACT?

The CARE Act revises FLSA to update agricultural child labor age and work hour standards to match those for non-agricultural child labor, while still maintaining exemptions for family farms, 4-H, and educational or vocational programs that promote agricultural careers.

Key points in the legislation:

  • It preserves and broadens exemptions for children working on family farms, ensuring they can continue to contribute to family agricultural operations.
  • The legislation significantly raises civil and criminal penalties for child labor law violations, with civil penalties going up to $151,380 and penalties for serious violations leading to death or serious injury up to $690,000, both adjusted for inflation. Criminal penalties could reach $750,000 or include up to five years of imprisonment.
  • It eliminates exceptions that currently allow for hand harvest laborers under 16 and reduces children’s exposure to pesticides by repealing certain worker protection standards. Additionally, it extends FLSA child labor protections to independent contractors, requires annual injury reports including workers’ ages to Congress, and mandates improved data sharing between the Department of Labor’s Occupational Safety and Health and Wage and Hour Divisions.
  • The proposed law mandates that, within 90 days after its enactment, the Assistant Secretary of Labor for Occupational Safety and Health and the Administrator of the Wage and Hour Division must sign a memorandum of understanding. This agreement aims to enhance coordination and enforcement between the Occupational Safety and Health Administration (OSHA) and the Department of Labor Wage and Hour Division by sharing information and facilitating enforcement activities. This includes sharing records and reports related to worker injuries, illnesses, or fatalities, especially those involving children under 18. Additionally, the Assistant Secretary of Labor for Occupational Safety and Health is to encourage state agencies with approved state plans to participate in this information sharing. The memorandum is to be modeled after a similar agreement that was effective on May 4, 2023.

Risks to All Farmworkers, Children Uniquely Vulnerable

Children, in particular, face unique risks from pesticide and toxic chemical exposures. Due to their smaller body size, they absorb a higher relative amount of pesticides through the food they consume and the air they breathe. Additionally, children’s developing organ systems make them more vulnerable to the impacts of toxic exposure. Several authoritative bodies, including EPA, the National Academy of Sciences, and the American Public Health Association, have all voiced concerns about the potential dangers that pesticides pose to children. Scientific evidence has shown that pesticide exposure can negatively impact a child’s neurological, respiratory, immune, and endocrine systems, even at low levels. Some pesticides, such as synthetic pyrethroids, organophosphates, and carbamates, are known to cause or exacerbate asthma symptoms.

A specific example of the failure of EPA to protect children and specifically child farmworkers is found in the case of chlorpyrifos, a previously banned organophosphate insecticide under a federal court ruling, only to be overturned on appeal by the agrichemical and conventional agriculture industry. Beyond Pesticides has long reported on the multitude of twists and turns in EPA’s actions on chlorpyrifos, see background and a timeline of developments here. Chlorpyrifos is a dangerous, proven neurotoxicant that has dire impacts on children, making EPA’s action to allow its continued use a failure of both its protective mission and ethics. Further, it is an environmental justice failure, given that risks of exposure fall disproportionately on low-income African American and Latino families, including farmworker families, who are at the greatest risk of harm.

Despite several years of study, the science addressing neurodevelopmental effects [of the insecticide chlorpyrifos] remains unresolved,” as reported in The New York Times. This conclusion contradicts both ample scientific evidence and the agency’s own findings. Beyond Pesticides has repeatedly advocated for a ban on the use of chlorpyrifos because of the grave risks it poses. In 2019, Rep. Nydia Velásquez (D-NY) introduced the Ban Toxic Pesticides Act, H.R.230 to ban the insecticide chlorpyrifos from commerce. “It’s unconscionable for EPA to turn a blind eye as children and workers are exposed to this poison,” Rep. Velázquez said.  “If the EPA won’t do its job when it comes to chlorpyrifos, then Congress needs to act—and do so quickly.” No similar legislation has been introduced in the current Congress.

Current State and Federal Legislation

In 1938, the U.S. Congress enacted FLSA to enhance the welfare of workers, notably by restricting the employment of minors in severe forms of child labor. FLSA exempts certain types of agricultural work, permitting children aged fourteen and above to engage in non-hazardous farm tasks outside school hours. It also allows twelve and thirteen-year-olds to participate in such activities with a parent’s or guardian’s permission. The act specifically identifies eleven agricultural jobs as hazardous, which children under sixteen are prohibited from undertaking. Additionally, there are roles deemed hazardous for minors aged 16 to 18. The Department of Labor is responsible for FLSA’s enforcement.

States may pass their own child labor laws, but FLSA is seen as the “floor.” In other words, if a state law is less restrictive than FLSA, then FLSA will be the standard that employers must follow. If the state law is more restrictive than FLSA, then the state law will be the standard that employers must follow.

As documented in the U.S., according to the Department of Labor’s website, states like Alabama, Delaware, Georgia, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Montana, Nebraska, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, West Virginia, and Wyoming have largely exempted agricultural labor from their child labor regulations. Meanwhile, California, Hawaii, New Hampshire, Washington, and Wisconsin stipulate that individuals must be 18 to engage in farm work during school hours. Furthermore, 14 states have designated 14 as the minimum age for children to work on farms outside of school hours. 

Federal legislation has been introduced often over many years and finds stiff opposition from big agricultural-industrial interests, including an earlier version of the CARE Act in 2023. U.S. Sen. Cory Booker (D-N.J.) also reintroduced legislation in February 2023 to increase protections against exposure to toxic pesticides. The Protect America’s Children from Toxic Pesticides Act (PACTPA) of 2023 includes a ban on the highly toxic pesticide paraquat, which is known to cause Parkinson’s disease, as well as dangerous organophosphates and neonicotinoids. The legislation addresses foundational weaknesses in federal law and the pesticide registration process that have resulted in U.S. approval of numerous pesticides already banned by many other nations.

More on Disproportionate Impact

The authors of the above-mentioned report on disproportionate harm—Nathan Donley, environmental health science director at the Center for Biological Diversity and Robert Bullard, known as the “Father of Environmental Justice” and executive director of the Robert D. Bullard Center for Environmental and Climate Justice at Texas Southern University in Houston—address the impact on child farmworkers. 

Children remain unprotected:

  • Following recommendations from the National Academy of Sciences, the Food Quality Protection Act of 1996 (FQPA) established a mandate that the EPA further protect children from pesticide harm due to their heightened susceptibility to chemical exposures. This protection came in the form of a 10X safety buffer, reducing allowable exposures to all people from pesticides by tenfold as a way of protecting young children and the developing fetus. Given that children are more susceptible to harm from pesticides and children of color are more likely to be exposed to pesticides, this was widely seen as one way to protect the most vulnerable of at-risk populations.
  • Unfortunately, Congress’s intent regarding protecting young children from pesticides has never been fully realized. The National Research Council found that the EPA only put in place the tenfold child safety factor for five out of 59 pesticides it analyzed, and a larger analysis of more than 400 pesticides by the U.S. Government Accountability Office (GAO) found that only 22% had the full safety factor utilized in approval decisions. A more recent analysis of 47 pesticides similarly found that only a small minority of pesticides that are present in food had any safety buffer incorporated for children.
  • The lack of adequate protections can hit certain communities particularly hard. For instance, over 50% of migrant children in the U.S. have an unmet health need compared to just over 2% of all children living in the U.S. Compounding stressors can significantly increase the sensitivity of children to pesticides and other pollutants. Without added protections, children of color and those in low-income households are more likely to remain unprotected.

While OSHA is responsible for monitoring chemical exposures in various sectors, EPA has yet to implement mandatory biological monitoring for agricultural workers exposed to harmful pesticides. Such monitoring, involving the analysis of blood or urine to confirm exposure levels are not hazardous, is operational for certain pesticides through state-led initiatives in California and Washington. Findings from these programs indicate that harmful physiological effects can occur from pesticide exposure even when applied correctly and without immediate symptoms. Instituting a nationwide policy for biological monitoring, inspired by these state efforts, could mitigate risks for agricultural workers nationwide. This will take a concerted effort that rejects the chemical-by-chemical approach to reform, which at the current pace will not meet the urgency of the existential crises that we face as a nation and globe. The solution lies with proven organic methods to manage agricultural production, land spaces, and buildings without toxic chemicals. Reform legislation in Congress must meet the urgent need to make this a transformational moment.

Solutions to Protect Child Farmworker Safety and Fair Labor Standards

Advocates, including Beyond Pesticides, argue that the “precautionary principle” should be widely adopted across United States regulatory frameworks. This principle suggests a fundamental change in how government regulators approach the approval of activities that could lead to pollution. It encourages asking, “What is the minimum possible harm?” instead of, “What level of harm is acceptable?”  Implementing this approach means setting a more stringent, science-backed threshold for proving a chemical’s safety. It grants regulators the authority to preemptively halt potentially harmful actions when safety is uncertain and promotes a thorough investigation into less harmful alternatives. Although pesticides have adverse effects on child health and development, too little research has examined pesticide exposure among child farmworkers.

For more background on deficiencies in farmworker protection, see Precarious Protection: Analyzing Compliance with Pesticide Regulations for Farmworker Safety.

Consumer food choices have a direct effect on those who grow and harvest food production around the world. This is why food labeled organic is the right choice. Certified organic food eliminates the most hazardous pesticides to which farmworkers are exposed in chemical-intensive agriculture. At the same time, an organic diet eliminates these pesticide residues in food and reduces a number of health threats like diabetes and increases brain function. In addition to mitigating serious health concerns associated with petrochemical pesticides and fertilizers, our decisions at the supermarket not only influence agricultural practices, but have a direct impact on the health and safety of farmworkers and their families. Advocates urge everyone to know where their food comes from and eat organic and fairly traded foods whenever possible and say thank you to those who grow and harvest our food. 

For more information on the importance of eating organic food for you, farmworkers, and the environment, please see Beyond Pesticides’ Eating with a Conscience and Organic Agriculture webpages.

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

Sources:

Senate Bill 4038: Children’s Act for Responsible Employment and Farm Safety (CARE) (S.4038)

During Ag Week, Luján Introduces Legislation to Improve Child Protections and Safety Standards for Agriculture Industry, Press Release, March 21, 2024

US pesticide regulation is failing the hardest-hit communities. It’s time to fix it., Brookings Institution, Nathan Donley, Robert Bullard, January 18, 2024

Pesticides and environmental injustice in the USA: root causes, current regulatory reinforcement and a path forward, Nathan Donley, Robert Bullard, Jeannie Economos, BMC, April 2022

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