Sue Lani Madsen: Changing regulations lead to confusions and precautions

Sometimes a rumor is fake news, and sometimes it’s a cautionary tale.

Thirty-three years ago, our class of brand new volunteer EMS responders decided to order matching jackets and ask our employers to pay for them. In return for $50, the employers each got their name stitched on the back as the sponsor. My supervisor said OK, but only if I accepted appointment as the company’s designated safety officer.

He was eager to pass off the responsibility for compliance with the Washington Industrial Safety and Health Act, or WISHA. I soon figured out why.

As you can probably guess, Chapter 296-800 of the Washington Administrative Code’s Safety Standards, first adopted as part of WISHA in 1973, is delightfully dull reading, unless you’re the one facing the prospect of investigation and fines.If anything ever goes wrong, all records will be audited and no mercy is to be expected for missed dates or missing forms.

And even though that experience was more than two decades ago, a photo meme of the state’s administrative code featuring a suspiciously coincidental expiration date for a WISHA emergency rule caught my attention. While it was unlikely to be conspiracy, as the meme suggested, it was tempting to catch the Department of Labor & Industries with an uncrossed “t” and an undotted “i.”

The emergency rule appeared to be “conveniently” scheduled to expire two days after the November election. Until L&I corrected the website this week, the WISHA standards were dated May 26, while the emergency rule pertaining to “coronavirus prohibited business activities and compliance with conditions for operations” was dated July 8, implying it wasn’t really an emergency if it could wait six weeks before kicking in.

Maggie Leland, executive policy manager for L&I, appreciated having the oversight brought to their attention. She noted the emergency rule has been updated each time the governor makes a new proclamation, and emergency rules expire in 120 days per statute. The election day near miss was a 120-day coincidence when the rule was updated after the governor’s July 8 proclamation. It’s been updated again for the July 28 proclamation, and this time all the dates match. The new rule expires Nov. 25.

Election conspiracy rumor squashed, and L&I said thank you.

Staying current with agency rulemaking is a challenge for small businesses, even without emergency rules popping up by proclamation. The standard rule-making process includes public comment periods. Emergency rules take no individual comments and relatively minimal industry input until after they are issued. The assumption is the “situation is deemed too urgent to take that time,” said Leland. Rules are set relying on experts at the U.S. Occupational Safety and Health Administration, the Centers for Disease Control and Prevention, and the governor’s office. Ignorance of the law is no excuse. L&I relies on employers to either monitor the L&I website, sign up for the L&I listserve to receive email announcement of changes or receive notifications through industry-specific associations.

The Washington Association of Wheat Growers sent the latest rules out to their members, currently in the midst of harvest. The association was frustrated by the one-size-fits-all application of emergency agriculture rules to dryland farming. Grain, pea and canola harvest crews are small and work well distanced, each in their own piece of equipment and usually with a sealed and air-conditioned cab. The WAWG suggested Washington adopt rules similar to Oregon, which distinguished between labor intensive fruit and vegetable production and dryland fields stretching across hundreds of acres.

A new meme popped up this week from farmers in Odessa and Lind, spreading across social media news feeds faster than a wildfire through standing grain. It says L&I is sending inspectors around Eastern Washington, stopping harvest trucks and warning of fines if the driver doesn’t have the masks and hand sanitizer available.

Michelle Hennings, executive director of WAWG, was surprised by the rumor and said she was unaware of any L&I incidents so far, but the potential is there.

“Our farmers do need to know what the repercussions are if they don’t have these supplies on hand,” said Hennings.

Hennings’ members pleaded for and got relief from the governor’s office on one requirement. The original rule insisted on handwashing stations “at every location and at all times that employees are acting within the scope of their employment.” That would have meant installing a sink in every combine, tractor and truck. Common sense prevailed on that one.

L&I does have inspectors in Eastern Washington making spot checks of business compliance with masks and hand sanitizer, and they can levy fines. But Tim Church, who works in media relations for L&I, said, “I’m very well informed and am unaware of any situation where anyone has been fined” during harvest this season.

The specific incident is still rumor unless someone calls me from their combine, but the story serves as a cautionary tale.