WENATCHEE, Wash. — Washington’s tree fruit industry could be crippled by state COVID-19 rules eliminating 50% of farmworker housing capacity and by difficulties getting H-2A-visa agricultural foreign guestworkers to the state from Mexico.

Meanwhile, Stemilt Ag Services, a subsidiary of Stemilt Growers, of Wenatchee, proactively chose to have 71 tree fruit workers at a remote East Wenatchee housing facility tested for COVID-19, last weekend, and 36 tested positive. None of the workers showed any symptoms, and all are healthy and being monitored while quarantined, the company said.

Stemilt has implemented virus control measures at its work and housing sites but more agricultural workers in the Wenatchee Valley should be tested for quarantines when needed, a local health district official said.

On April 16, at least two days before the Stemilt testing, a group of farmworker advocates, including United Farm Workers, Columbia Legal Services and Familias Unidas por la Justicia, filed suit in Skagit County, Wash., seeking emergency COVID-19 rules from the state departments of Labor & Industries and Health for workers in fields, orchards, packing houses and farmworker housing.

A hearing is set for May 1 in Skagit County Superior Court.

The departments had already issued advisory fact sheets for packing houses and fields but now, in response to the lawsuit, appear to be headed toward emergency rules for housing, said Dan Fazio, director of the farm labor association Wafla.

“We are opposed to an emergency regulation. We prefer a more flexible approach,” Fazio said.

A key issue is whether physical barriers between bunkbeds is a sufficient alternative to greater spacing.

Bunkbed restrictions could be “catastrophic” and the lawsuit is “a political stunt by unions and contingency-fee lawyers aimed at pushing the state to adopt harsh rules because they oppose the H-2A program,” Fazio said.

The FairBridge Inn farmworker housing in Yakima has space for farmworkers needing quarantine, as does Wafla’s Riverview housing in Okanogan, he said.

Jon DeVaney, president of the Washington State Tree Fruit Association, said the “prescriptive approach” the unions want could result in a loss of 50% of farmworker housing which could create worker shortages and crop losses.

“Labor is our most critical input in producing tree fruit and housing is a critical part of having labor,” DeVaney said.

“The timing of this lawsuit was purposeful and intentional,” said Mike LaPlant, president of the Washington Farm Bureau. “These labor groups placed their own political interests over the needs, health and safety of the farmworkers they claim to represent.”

Wafla assisted Washington growers in obtaining 12,000 H-2A-visa guestworkers from Mexico last year for 16,000 jobs last year out of the 26,226 H-2A jobs certified in the state. That’s roughly half of the seasonal jobs for harvesting apples and pears in August through October.

Even though H-2A workers are excluded from President Donald Trump’s immigration ban, “we are concerned about getting workers across the border in May and very concerned about August,” Fazio said.

Mexican states have different restrictions due to COVID-19, police are stopping buses and checking passengers’ temperatures, there are hotel issues in Tijuana and workers who need U.S. consulate interviews because of troubles with documents can’t get them, Fazio said.

“If social distancing is required on buses from Tijuana to Washington state it could easily double the cost of a bus ticket from $200 to $400,” he said.

“Our advice is for growers to have us get people up as soon as they can if they can afford it,” Fazio said.

It helps, he said, that federal regulations have been eased to allow H-2A workers already in the U.S. to transfer among employers.

Fazio said growers are waiting to see if the U.S. Department of Labor will lower the Adverse Effect Wage Rate — known by the initials AEWR — which is the minimum wage for H-2A workers.

“If that happens, if it’s lowered to the state minimum wage, growers will bring workers up,” he said.

The AEWR is $15.83 per hour in Washington, but pickers often make more on piece rate pay. The state minimum wage is $13.50.

The savings could help offset other cost increases growers face from COVID-19, he said.

However, DeVaney said growers may not want to pay less for orchard work when they’ve been paying more to keep essential workers in packing houses.

He said most people newly unemployed from COVID-19 are furloughed and waiting to go back to their regular jobs, are not required to look for work and don’t have the skills or fortitude for physical agricultural work.