Any pork producer with 10 or fewer non-family employees, has had only to be concerned with the agricultural sections of the federal Occupational Safety and Health Act. That includes things like having proper rollover protection on equipment and conducting employee training. While the rest of OSHA’s rules apply to any business with employees, Congress has made sure that small farms were exempt from enforcement.

But that could change. OSHA may play a bigger role on small farms if a Wisconsin judge’s ruling stands. Circuit Court Judge Robert Wing recently ruled that the OSHA general-duty clause applied to a small dairy farmer whose employee was injured on the job. By setting that precedent, the judge made it possible for all farmers with 10 or fewer employees to now be held strictly liable if they don’t comply with the OSHA clause.

“If this decision stands, it will place upon small farmers a burden that they’ve never had to deal with,” says Mike Stientjes, assistant counsel at the American Farm Bureau Federation.

Case in point
A Wisconsin civil case provides an example of what kind of situations small farmers might face. In 1997, Marjorie Rydberg sued Doane Derricks, a dairy farmer in Pierce County, Wis., after having an accident on his farm.Rydberg worked on Derricks’ farm in exchange for horse feed. According to the court records, Rydberg fell through a hay chute while working, despite prior knowledge that the haymow chutes were open.

Normally, the jury would determine from the facts of the case whether or not Derricks was negligently liable for Rydberg’s injuries. The new twist came when the judge instructed the jury that it was negligent “per se” to violate OSHA’s general duty clause. That clause reads that employers “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” It also states that the employer and employee must comply with OSHA standards and rules.

After those instructions, the jury found that Rydberg was Derricks’ employee and that Derricks was responsible for her injuries. He was ordered to pay her more than $2,000 in damages and fees.

Implications for you
AFBF’s Stientjes says the ruling troubles those in agriculture because it sets a precedent for two separate scenarios. First, when the judge applied OSHA’s general-duty clause, he created a situation in which the farmer was held liable for the employee’s injuries if the jury found that the farmer did not meet the clause provisions. “Our real concern with this case is that the general-duty clause should not give rise automatically to liability,” Stientjes says. AFBF is saying that violation of OSHA’s clause should not necessarily mean that an employer is liable in court.

Second, the judge’s ruling essentially ignores the fact that Congress does not allow OSHA officials to enforce the general-duty clause in agricultural operations that have 10 or fewer employees. This exemption allows smaller farmers to operate without the burden of OSHA recordkeeping procedures and inspections, explains Mark Byers, agricultural safety specialist at Ohio State University. “This could open up a big can of worms for agriculture and OSHA in the future,” Byers says.

The ruling does not mean that OSHA officials could now inspect small farms. Stientjes explains that the precedent-setting ruling would come into play in liability situations. In most situations where an employee is hurt on the farm, regardless of whose fault it was, the owner has workers compensation coverage that pays for any injuries. However, small farms may not carry workers compensation coverage.

Now, with this ruling, employees on small farms could claim the owner is
liable for their injuries under OSHA’s general-duty clause, setting up many more potential lawsuits.

What happens now?
The Wisconsin farmer’s insurance company has filed an appeal of the verdict, and the case is now in Wisconsin’s Third District Court of Appeals. AFBF and the Wisconsin Farm Bureau Federation filed a friend-of-the-court brief challenging the judge’s decision to apply the OSHA clause. As this story went to press, oral arguments in the appeal case had not yet been heard. Once that’s done, the appeals court will make its decision – but that decision also can be appealed.

If the ruling stands, Stientjes says you will have to look at routine situations on your farm very differently. The threat of easily applied liability in a potential lawsuit would make extra protection for your employees – or just doing the more dangerous jobs yourself – necessary.