Below is a summary of statutory regulations related to hand weeding established in SB 21-087. For more detailed language please refer to specific statutory language found in C.R.S. 8-13.5-201, esq.
Summary of new requirements for hand weeding established in SB21-087 and Rule 8 CCR 1202-18
Prohibition on the use of a short-handled hoe
- A short-handled hoe means “a handheld tool with a flat blade affixed perpendicularly to a handle that is less than eighteen inches long.” A “short-handled hoe” includes a long-handled hand tool that has been modified to be used as a short-handled hoe.
- Using a short-handled hoe is prohibited in agriculture employment for weeding and thinning in a stooping, kneeling, or squatting position. There are no exemptions to this prohibition.
- While the use of a short-handled hoe is prohibited for agricultural workers, agriculture employers and family members may use a short-handed hoe personally.
Requirements to provide an additional five minute rest period and equipment to workers for hand weeding
- Agricultural employers must provide workers engaged in hand weeding and hand thinning an additional five-minute rest period, which, insofar as is practicable, must be in the middle of each work period. The rest period must be based on the total hours worked daily at the rate of fifteen minutes net rest time per four hours of work or a major fraction thereof. The employer shall count the authorized rest period as hours worked and not deduct the rest period from the worker's wages.
Example: If a worker works a 10 hour day, the worker is entitled to 3 fifteen-minute rest periods, spaced evenly throughout the day, as much as practicable.
- An agricultural employer shall provide gloves and knee pads as necessary to each worker engaging in hand weeding, hand thinning, or hand hot-capping.
Time limitation on workers hand weeding and hand thinning in a worker’s weekly work time and exemptions to the limitation for employers
- Based on the statutory language, the use of hand weeding or the use of a short-handled tool, other than a short-handled hoe, in a stooped, kneeling, or squatting position is strongly disfavored unless there is no suitable long-handled tool or other alternative means suitable and appropriate.
- The statute establishes a limitation of 20% or less of a workers’ weekly work time in which they can hand weed in a stooped, kneeling, or squatting position. This limitation is defined as “occasional or intermittent.”
- Agricultural employers must ensure the time an agricultural worker spends hand weeding does not exceed that 20% threshold. However, there are specific exemptions to this limit defined in the statute:
- Occasional or intermittent hand weeding that is incidental during non-hand weeding operations;
- Hand thinning high-density plants spaced less than 2 inches apart
- An agricultural employer who is certified as meeting the standards of the USDA’s National Organic Program;
- Hand weeding, thinning, or tending any agricultural or horticultural commodities when they are seedlings;
- Hand weeding, thinning, or tending any agricultural or horticultural commodities grown in tubs or planter containers with an opening that does not exceed fifteen inches in width;
- Seeding, planting, transplanting, or harvesting by hand or with a hand tool;
- Tending the soil-exposed area immediately surrounding the commodities grown using polyethylene or plastic mulch. This exemption does not apply to the soil between rows.
- Any agricultural worker that does not qualify for an exemption to the 20% threshold described above may apply to the CDA for a certificate of variance to allow for agricultural workers to hand weed and hand thin beyond the 20% threshold of their workweek.
- The process by which an employer can receive a variance certificate from the Colorado Department of Agriculture is established by rule and allows an employer to have workers hand weed beyond 20% of their weekly work time. This variance certificate may be issued provided the agricultural employer meets the statutory requirements.
Applying for and qualifying for a variance certificate
- Agricultural employers seeking a variance should submit an application at least 10 business days prior to permitting more than occasional or intermittent hand weeding or thinning on the identified agricultural property(ies).
- There are two scenarios in which agricultural employers can qualify for a variance certificate:
- Agricultural employers actively engaged in the transition to certified organic agriculture for a period of no more than three years.
- Agricultural employers may seek a general variance certificate of their farming operations provided they do not qualify for the exemptions above AND comply with specific qualifications outlined in the statute.
- The specific qualifications an agricultural employer must meet to receive a variance certificate require the employer to establish to the best of their knowledge that:
- The hand weeding (not hand thinning) 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.” and;
- “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...commodity and the scale of the operation.”
- To meet these qualifications, an agricultural employer must provide a written narrative explaining, to the best of their knowledge, how they intend to meet these requirements. CDA staff will review the response to affirm the response is complete and reasonable. Staff may seek additional clarification from the applicant if needed.
- In the application, an agricultural employer must also attest that they understand they are required to provide an additional 5 minute paid rest, provide knee pads and gloves, and will not have workers use a short-handled hoe (see statutory requirements above).
Additional information about the variance certificate
- The variance certificate will be issued for one calendar year starting in 2022.
- Once the application is received, CDA staff will review the application to ensure it is complete and meets the qualifications. CDA will attempt to issue variance certificates in seven to ten business days; depending on the volume of applications.
- Agricultural employers seeking organic certification may only acquire a variance certificate for up to three years. Once they become certified they are exempt from the 20% threshold and a variance certificate is not needed. If an employer fails to become certified in organic agriculture within three years, the commissioner may extend the period in which the employer can apply for a variance certificate if extenuating circumstances exist.
- There is no charge to the agricultural employer to apply for a variance certificate.
- The CDA will not collect any farm records or documentation from the agricultural employer, other than the application. Business-related information shared on the application is closed to public inspection.
- Agricultural employers are not required to keep records related to the variance certificate or compliance with the statutory requirements outlined above, including tracking the hours spent by an employee hand weeding or hand thinning. Although it is strongly encouraged that employers maintain an active variance certificate and proof they are complying with these requirements.
- The requirements and prohibitions outlined above and found in SB21-087 and Rule 8 CCR 1202-18 apply to agricultural employers that contract with a third party to supply agricultural workers that conduct hand weeding and hand thinning activities on behalf of the agricultural employer.
- CDA will not conduct any inspection of a farm to ensure compliance and does not have any regulatory authority to enforce these requirements.
- Additional questions about the variance program can be emailed to Handweedingprogram@state.co.us