Public Comment: SB21-087 Hand Weeding Variance
The Colorado General Assembly recently passed SB21-087 "Concerning Agricultural Workers' Rights." Within that bill are specific provisions that require the Colorado Department of Agriculture (CDA) to promulgate rules related to the allowance of hand weeding and thinning crops by workers. First, CDA must establish a procedure for agricultural employers to seek a certificate of variance to allow for more than occasional or intermittent hand weeding of agricultural or horticultural products by workers. Secondly, the CDA must promulgate a rule to establish an allowance and limitations of hand weeding and hand thinning for an agricultural employer actively engaged in the transition to certified organic agriculture. Specific bill language regarding the rule can be found here:
8-13.5-203 (2), C.R.S.
(d) THE COMMISSIONER OF THE DEPARTMENT OF AGRICULTURE SHALL PROMULGATE RULES REGARDING ALLOWANCES FOR AND LIMITATIONS TO HAND WEEDING AND HAND THINNING FOR AGRICULTURAL EMPLOYERS ACTIVELY ENGAGED IN THE TRANSITION TO CERTIFIED ORGANIC AGRICULTURE FOR A PERIOD OF NO MORE THAN THREE YEARS WHILE ENSURING THAT AGRICULTURAL WORKERS ARE NOT AT RISK OF ACUTE, CHRONIC, OR DEBILITATING INJURIES. THE RULES MUST BE PROPOSED ON OR BEFORE OCTOBER 31, 2021, AND ADOPTED ON OR BEFORE JANUARY 31, 2022.
(e) ON OR BEFORE JANUARY 31, 2022, THE COMMISSIONER OF THE DEPARTMENT OF AGRICULTURE SHALL PROMULGATE RULES THAT ESTABLISH A PROCEDURE FOR AGRICULTURAL EMPLOYERS TO SEEK A CERTIFICATE OF VARIANCE FROM THE COLORADO DEPARTMENT OF AGRICULTURE THAT ALLOWS FOR MORE THAN OCCASIONAL OR INTERMITTENT HAND WEEDING OF AGRICULTURAL OR HORTICULTURAL PRODUCTS IF THE AGRICULTURAL EMPLOYER ESTABLISHES THAT:
(I) THE HAND WEEDING DOES NOT INVOLVE PROLONGED AND UNNECESSARY STOOPING, KNEELING, OR SQUATTING, AND DOES NOT CREATE A RISK OF ACUTE, CHRONIC, OR DEBILITATING INJURIES FOR AGRICULTURAL WORKERS;
(II) THERE IS NO SUITABLE LONG-HANDLED TOOL OR OTHER ALTERNATIVE MEANS OF PERFORMING THE WORK THAT IS SUITABLE AND APPROPRIATE TO BOTH THE PRODUCTION OF THE AGRICULTURAL OR HORTICULTURAL COMMODITY AND THE SCALE OF THE OPERATION; AND
(III) THE HAND WEEDING CANNOT BE PERFORMED PURSUANT TO AN EXISTING EXEMPTION PURSUANT TO THIS SUBSECTION (2).
(Note: "Occasional or intermittent hand weeding" is defined in SB21-087 as 20% or less of an agricultural worker's weekly work time.)