The novel coronavirus/COVID-19 has disrupted many U.S. farmers’ normal operations. The recent U.S./Mexico border closure significantly restricts crossings along one of the most commercially viable borders in the world. Agri-businesses are now changing employment practices to help the farming industry survive this global pandemic. This means American farmers who rely on the H-2A guest worker program must quickly (and accurately) resolve labor and employment problems that are unique to the COVID-19 farm environment. Some frequently asked questions are addressed below:
1. Will my H-2A workers arrive on time? Farmers should brace for slight delays as the U.S. State Department continues to grapple with border crossings and health screenings. The encouraging news is that the Department of State, in consultation with the Department of Homeland Security, has authorized consular officers to waive many of the in-person interview requirements for returning H-2A laborers. Government officials anticipate the “vast majority” of otherwise qualified H-2 applicants will now be processed without an interview, so farmers should not experience significant delay unless the novel coronavirus increases beyond the southern border.
Additionally, in light of the U.S./Mexico border closure, the U.S. Department of Agriculture and the U.S. Department of Labor have also identified nearly 20,000 H-2A and H-2B certified positions that have expiring contracts in the coming weeks. The workers leaving these positions could be available to transfer to a different employer’s labor certification.
2. What if I can’t pay the 3/4 wage guarantee because of economic slowdowns? Many farmers are afraid of the negative economic consequences that may follow COVID-19 and how a slowing economy might impact their ability to meet payroll. An employer continues to be responsible for its obligations under the work contract until receiving a favorable “contract impossibility” determination from the Certifying Officer. An employer may submit a request for “contract impossibility” (an Act of God that makes the fulfillment of the contract impossible) to the Chicago NPC Certifying Officer using the following method:
If the Certifying Officer makes a finding of contract impossibility, the employer should document its efforts to comply with each aspect of the contract impossibility provision. Specifically, the employer should document that it fulfilled the three-fourths guarantee for the time that has elapsed from the start date of work specified in the work contract to the date of termination. H-2A employers must make efforts to transfer the worker to other comparable employment acceptable to the worker, consistent with existing immigration laws.
3. If my H-2A worker contracts COVID-19 on the farm, am I liable for their medical expenses? If an H-2A employee becomes ill and has a confirmed COVID-19 diagnosis, their illness might qualify them for workers’ compensation. If that happens, you should report the exposure to your workers’ compensation insurer as soon as you learn of it. It will likely start as an incident-only report, and it’s possible it will never result in a claim. Whether the employee will be eligible for coverage is very fact-specific and requires proof that the worker contracted the illness during the course and scope of his or her employment.
4. Should I quarantine an H-2A worker who merely shows symptoms of COVID-19? Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s COVID-19 guidance advises that employers should implement good hygiene and infection control practices, including encouraging workers to stay home if they are sick. This means farmers who reasonably suspect that an H-2A employee has contracted the coronavirus should implement social distancing to reduce the likelihood of transmission. Doing so may mean that other H-2A employees will need to be relocated to alternative housing approved by the state workforce agency. Regardless of whether an employee becomes ill, however, employers should implement more frequent cleaning regimes using cleaning materials that are known to be effective against viruses, including COVID-19, and should encourage H-2A workers to regularly sanitize their housing facilities.
5. Are we required to repatriate H-2A employees who have tested positive for coronavirus? Most international borders are closed. In light of the COVID-19 health crisis, the United States reached agreements with both Canada and Mexico to limit travel across their respective borders to “essential travel” only. Although Mexican citizens are permitted to return home to Mexico, as a practical matter, repatriation may not be feasible for individuals who are ill. Rather, farmers with H-2A employees who have tested positive for coronavirus should consider how those employees can shelter in place until their health is restored.
6. How should I respond when an H-2A worker wants to leave due to coronavirus fears? H-2A employees who abscond forfeit their claim to the 3/4 wage guarantee, and employers are not responsible for funding their return travel. In cases of job abandonment, farmers should report the worker’s departure to USCIS immediately so the wage obligation may be capped to hours of work actually performed, regardless of whether the worker has performed ¾ of their contract. Please note, employers must report job-abandonment within two days of the workers’ departure.