An undocumented dairy worker is pictured in Washington County. (Provided photo — Zach Hirsch/NCPR)

A new investigation by the not-for-profit investigative outlet ProPublica finds when a farmworker is injured or dies on a North Country dairy farm, federal labor safety investigators often look the other way.

In New York, OSHA, the Occupational Safety and Health Administration, is barred from looking into injuries and deaths on farms with fewer than 11 workers. Many North Country dairy farms are that size or smaller.

The exception is if the workers are deemed in a “temporary labor camp.” But ProPublica reporter Melissa Sanchez told David Sommerstein that because the majority of New York dairy workers are Mexicans or Central Americans who are undocumented, that definition is a gray area. Their conversation has been lightly edited for clarity.

MELISSA SANCHEZ: A lot of people, including the bosses at OSHA, have interpreted [“temporary labor camp”] to mean a type of housing provided by an employer for a worker on a seasonal or temporary basis. I think traditionally, we’ve thought of that as housing for migrant farmworkers or people who follow crops like in the 1960s or ’70s who lived in barracks on the property that were often in horrible conditions. But back when those laws were written, the dairy industry didn’t look like it does today. There weren’t immigrant workers who lived on [dairy] farms in that type of housing.

DAVID SOMMERSTEIN: But it has this exemption for small farms. A big question in your reporting was why housing size is even a consideration. What does that have to do with the death of a farm worker? Shouldn’t any death be investigated by federal investigators?

SANCHEZ: I would hope so. But it’s not the case in much of the country. We should say that not every state relies on federal OSHA to do this. There are states that have their own OSHA programs. And those states can supplement the funds and inspect deaths and injuries regardless of the number of workers. So that’s the case. It’s really well known that the West Coast has a much stronger OSHA program. In California, Washington and Oregon, there can be as few as one worker on a farm and the state OSHA will investigate that death or injury. But in a lot of the country, like Wisconsin, New York or Vermont, where there are also a significant number of dairy farms, that’s not the case.

I think a lot of safety advocates would say, ‘yes, this should change.’ This isn’t this isn’t fair. A worker can die just across the border from one state to another, and one death will be investigated and one isn’t.

This law was an exemption that was put into place to protect the small farmer from over-regulation. I think as a country, we really romanticize the small farm. It’s a part of the American ideal. I think farms just look different now. It was a lot of farmers and their kids and maybe occasionally they’d have some high school kids over the summer to pick up a shift. But it wasn’t what you see today.

Right now, a lot of farms these days, they will still be a small farm, maybe just five or six workers, but they’re all immigrants [work on them]. They’re all undocumented. They live on the farm and farmers rely on them to pick up extra shifts. The cows are milked three times a day. Farms just rely on outside labor in a way that they didn’t when the law was created.

SOMMERSTEIN: That’s very much the situation here in New York state, on small dairy farms and on large dairy farms. Farmers say they wouldn’t be able to survive without immigrant workers who come in, and they’re almost all undocumented. What did your reporting find about how OSHA handles deaths here in New York State and what the biggest concerns are here?

SANCHEZ: What’s happening in New York is similar in terms of the accidents, the deaths, the injuries. I think 80% plus of immigrant dairy workers in New York live on the farms either on-site or on employer-provided housing nearby, which is, which is the case in a lot of these states. So while in Wisconsin, we found example after example of OSHA coming in and saying, if the employer provides housing to these workers, that should be considered a ‘temporary labor camp’ because the workers have permanent homes back in their home country, usually Mexico, and there’s kind of an understanding when they got hired that they might come and go to visit their families.

But OSHA very explicitly said it would not consider employer-provided housing in New York to be a temporary labor camp if employers offered their workers a job on a ‘permanent basis.’ And so that’s complicated, because a farmer can easily say, ‘well, I offered this work permanently to my worker.’ But what we’ve heard from academics and lawyers and other people, is that the worker can’t be permanent if they’re undocumented, if their very ability to stay in this country is so precarious. But OSHA in New York has said, ‘nope, that’s not the case. These aren’t temporary labor camps, and therefore we cannot inspect the small farms, the small farm exemption applies.’

People saw case after case of somebody getting hurt or getting killed, with OSHA saying, ‘hands up, I can’t do anything, I’m limited.’ And as a result, folks just don’t call OSHA when people get hurt in states like New York. And so you just have this entire class of people on I’m assuming hundreds if not thousands of farms in New York that don’t think there’s any help available to them if they get hurt are on the job.

SOMMERSTEIN: What do you hope comes of your reporting in terms of the regulations on dairy farms for mostly undocumented immigrant laborers?

SANCHEZ: I think, with OSHA, there’s clearly an inconsistency here and it doesn’t have to be this way. If OSHA found a way to check in on farms after somebody got seriously hurt or somebody died in one state, then it’s the same OSHA, it should hopefully be able to do the same thing somewhere else. So far, we haven’t heard any response. We’ve heard some grumblings from activists and advocates in different parts of the country that they want OSHA to be more clear about what’s happening.

OSHA declined interview requests. They basically told us, we are consistent, we follow our definitions. And they pointed us to the definitions that different people within the same agency had different interpretations of, but we hope there can be some more consistency and hopefully OSHA would err on the side of protecting more workers than fewer workers.