‘Do not enter’: Why are migrant worker bunkhouses not part of workplace safety inspections?

In some provinces, they're known as captive workers": those who, because of the circumstances of their job, have no choice but to live in employer-provided housing.

In Ontario, roughly 20,000 workers fall into this category - living and working on local farms after arriving each season from Mexico and the Caribbean. Since the pandemic began, more than 2,500 temporary foreign workers in the province have contracted COVID-19 on the job, with experts pointing to a significant risk factor: communal bunkhouses.

But while bunkhouses are considered part of the workplace when it comes to injury and illness compensation, these high-risk congregate settings are not covered by Ontario's occupational health and safety laws. As a result, labour officials were instructed not to enter bunkhouses in the course of COVID inspections - despite their role as possible transmission sites, according to internal guidance obtained by the Star.

To Justice for Migrant Workers organizer Chris Ramsaroop, it's part of a failure by each level of government to protect the interests of migrant workers."

One of the main lessons that should be learned from the pandemic is ensuring the health and safety of workers is protected in the workplace and housing," he said.

That should include covering bunkhouses under provincial safety laws, said Fay Faraday, a Toronto-based lawyer and York University professor who has written numerous studies on migrant workers.

Migrant farmworkers live at their workplace, and they don't have a choice," she said. This is the entirety of their experience in Canada."

Currently, employers must provide the federal government with proof of an approved housing inspection in order to participate in the Seasonal Agricultural Worker Program (SAWP). In Ontario, these inspections are conducted by local health authorities, who are in turn governed by provincial legislation.

But a recent submission by Niagara Community Legal Clinic to federal consultations on migrant worker housing said the current regime has few real enforcement mechanisms and is in practice ... meaningless."

As COVID outbreaks ripped through farms last year, some local health units issued health promotion, or Section 22, orders mandating extra protections for migrant workers. Provincially, the Ministry of Labour also identified agriculture as a key enforcement priority, according to internal memos obtained by the Star through a Freedom-of-Information request.

The internal guidance makes clear that inspectors should assess a number of safety considerations on farms, such as whether employers were mitigating transmission risks by cohorting workers into groups that could maintain physical distance at all times during work, break, (and) after work."

But where health units had Section 22 orders in place, as many regions reliant on migrant farm workers did, labour inspectors were told bunkhouses were off limits.

Ask about bunkhouse conditions," said guidance issued in July of last year. But do not enter."

If inspectors' questioning prompted concerns about housing, the information should be relayed to public health units, the guidance says.

But health units' resources were often stretched beyond capacity during the pandemic: the Niagara Community Legal Clinic submission notes that serious public health and maintenance issues" went uninspected and unreported" due to resourcing issues.

Beyond regions where Section 22 orders were in place, internal labour ministry guidance issued last summer said bunkhouses were likely" to be considered private residences, which are not covered by the Occupational Health and Safety Act.

In a statement to the Star, a spokesperson for the Ministry of Labour said inspectors had the authority to enforce Section 22 orders, emergency COVID laws, and labour laws on all parts of the farming operations except for bunkhouses."

The federal government, namely Employment and Social Development Canada (ESDC) and public health units, both have jurisdiction related to preventing COVID-19 outbreaks in these bunkhouses."

Agricultural workers weren't covered at all by health and safety laws in Ontario until 2006. As a result of a successful Charter challenge by the United Food and Commercial Workers union, with Faraday as counsel, farm labourers gained basic protections like the right to refuse unsafe work.

To Ramsaroop, extending those workplace protections to bunkhouses would bolster enforcement efforts. Provincial inspectors already visit farms to ensure compliance with labour standards, and can issue orders to employers to fix workplace hazards. The move would also strengthen another important right: speaking up about unsafe accommodation.

If (workers) were terminated, it would constitute a reprisal," said Ramsaroop.

There is already precedent for treating bunkhouses as part of the workplace, he said: at the Workplace Safety and Insurance Board, injuries and illnesses sustained in migrant workers' bunkhouses are considered work-related and are eligible for compensation.

Last year, three migrant workers died in massive outbreaks on Ontario farms; this year, at least five have died while quarantining in the province.

While federal immigration regulations require employers to provide adequate" accommodation to seasonal agricultural workers, there have been no financial penalties issued for violating this regulation for the duration of the pandemic, according to public enforcement data.

According to the latest statistics from ESDC, there were 347 housing site inspections completed across the country between April and the end of May.

The department has said it has taken a number of measures to ramp up worker protections amid the pandemic, including a tip line for migrant workers with the addition of live agents able to offer services in multiple languages," and a pilot project to conduct more in-depth inspections of high-risk employers.

A recent study by the Migrant Rights Network found some 66 per cent of migrant workers in Canada live with between five and 20 other people, with the majority sleeping in bunk beds and sharing amenities with up to a dozen other workers.

Ottawa is currently considering the creation of a national housing standard for migrant workers, a recommendation previously made in a 2018 study commissioned during the last round of federal consultations on the topic. That process generated significant protest from employers, and the recommendation was never implemented.

Minimum standards are a crucial step, said Faraday, but gaps around effective enforcement currently allow authorities to engage in a jurisdictional hot potato." While COVID-19 brought migrant workers' housing conditions into sharper focus, she said concrete action has been too slow.

At a policy level, the inadequacy of migrant worker housing has been raised literally for decades. And we're honestly no further ahead than we were when I started doing this work 30 years ago."

Federal protocols on COVID precautions for farm employers note that workers must be able to physically distance in bunkhouses, and point employers to federal ventilation guidelines.

Provincially, the farm outbreak management document provided by the Ministry of Health, dated Sept. 21, 2020, does not provide guidance on ventilation other than advice to maximize fresh air exchange where possible."

In June, a Ministry of Health spokesperson told the Star the document was in the process of being updated to reflect the importance of enhancing outdoor air ventilation and good maintenance of HVAC systems."

When contacted again in September, the spokesperson said the document is still currently under review" based on evolving guidance and recent updates by partners" on ventilation, like the Ministry of Labour and federal government.

The labour ministry has developed a tool for employers to create COVID safety plans that contains a section on good ventilation and air flow measures. The ministry also employs occupational hygienists and engineers with expertise on the topic, who can be deployed on field visits to workplaces.

But internal guidance issued last year to ministry inspectors on ventilation only touches on workplaces where labour officials have jurisdiction, like schools.

It's a big blind spot if that has not been adequately addressed," said Shail Rawal, an internal medicine physician in Toronto who was among a group of 1,000 health-care professionals who wrote to the province's chief medical officer about migrant worker protections.

Provincial authorities are currently operating a vaccine clinic at Pearson Airport for migrant workers; so far, an estimated 71 per cent of these workers are fully vaccinated, and 82 per cent have received at least one dose, according to Ministry of Agriculture statistics.

But while farm outbreaks have slowed through the summer months, Rawal said the winter could still see case counts rise.

That's the thing that has me concerned at this point. Vaccination is a key component of our efforts to reduce the transmission of COVID, but it is not the sole method of reducing spread," she said. You need to focus on other pieces like adequate PPE (personal protective equipment), reduction in number of close contacts, and ventilation."

To address these concerns, the Enhanced Agri-Food Workplace Protection Program has dispersed millions of federal and provincial dollars for Ontario employers to improve COVID precautions, including bunkhouse upgrades. The Star requested a list of all employers and projects funded, but a spokesperson for the agriculture ministry said it could not provide the information as the vast majority of Ontario farms are also home to farmers."

To protect their privacy we do not disclose farm-level details for this program."

For migrant worker safety, the horizon is broader than just COVID," said Rawal, adding that the efficacy of the vaccine should not obscure the root causes of ill health in migrant workers."

That's why Ramsaroop believes there is long-term need to ensure bunkhouses are covered by workplace safety laws.

We're getting complaints of workers who live next to a greenhouse or their accommodation is in proximity (to) chemicals, pesticides ... all these hazards are happening in housing," he said.

But there's no protection. And there's no jurisdiction to implement orders to change that."

Sara Mojtehedzadeh is a Toronto-based reporter covering work and wealth for the Star. Follow her on Twitter: @saramojtehedz