On April 9, 2020, the Department of Labor’s Office of Foreign Labor Certification, issued a Third Round of FAQ’s. It contains only two questions, only the second of which is applicable to agricultural employers.
The FAQ’s answer the question as to whether an H-2A employer can use alternative housing that was not initially disclosed in the H-2A job order as a temporary measure to promote social distancing and slow the spread of the novel coronavirus or during a quarantine period?
The Department expressly acknowledges that in some cases, COVID-19 containment measures may require an employer to find alternative housing for some of its workers due to social distancing measures that reduce the maximum occupancy of approved housing due to reduced occupancy standards, or quarantine workers for a temporary period of time. The employer’s approved housing has effectively become partially and temporarily unavailable due to COVID-19. In such cases, the employer must promptly email the State Workforce Agency (SWA) of the new housing situation. Once the employer notifies the SWA, the employer may place workers in other employer-provided housing or rental or public accommodation housing that complies with applicable housing standards. After relocating affected workers, the employer must provide documentation to the SWA showing that the housing is compliant and/or schedule an inspection of the alternative housing.
The OFLC has provided H-2A employers with significant flexibility in dealing with the pressures created by the pandemic. However, it is incumbent on H-2A employers to understand the limits to that flexibility. Members are encouraged to review the FAQ’s and confer with their employment law counsel before deviating from the terms of their H-2A job orders.