April 2, 2020

DOL Gives H-2A Users Much Needed Flexibility on Coronavirus Contingencies

On April 1, the U.S. Department of Labor announced it would temporarily ease some of the rigid requirements of the H-2A program as employers grapple with the tough real-world issues that have been foisted upon them by the coronavirus pandemic. 

This temporary easing of some H-2A requirements is outlined in the Office of Foreign Labor Certification’s (OFLC) COVID-19 ROUND 2 FAQs.

Performing Job Duties Not Specified in the Job Order

The H-2A regulations generally prohibit H-2A workers and domestic workers performing the same work (corresponding workers) from doing work that’s not specifically listed in the job order.

The OFLC recognizes that agricultural employers are responding to the disruptive impacts of the COVID-19 pandemic in a variety of way including promoting distancing to slow the spread, while at the same time trying to maintain the nation’s food supply and meet contractual obligations to foreign and domestic workers.

The OFLC is now employers to permit H-2A workers and corresponding workers employed to perform limited duties that are not specifically listed in the job order, but only as necessary due to the COVID-19 pandemic.  The caveats are that the additional duties: (1) fall under the FLSA definition of agriculture; and (2) are performed at worksite locations with the same area of intended employment certified by the DOL. The employer must also retain records showing the nature and amount of all work performed, including other work performed in response to the COVID-19 pandemic. All other wage, benefit and working condition obligations remain the same.

Performing Work at Other Worksites

Similar to the flexibility granted above, an employer may place H-2A and corresponding at worksites that are not specifically listed in the certified H-2A application and job order, but only as necessary due to the COVID-19 pandemic and related measures, and with the same two caveats listed above. The employer should provide an amended work contract to any workers who will be performing work at another worksite, as soon as practicable.

Employers who wish to include worksites that are outside of the area of intended employment because of the pandemic, must file a new H-2A application and job order under the emergency processing provisions. Fixed-site employers are reminded that they may place workers only at other worksite(s) the employer owns or operates.  

Contract Impossibility

The DOL recognizes that H-2A employers are likely to experience disruptions due to employee quarantines and unforeseen customer contract changes, and that employers need flexibility to deal with these challenges. Rather than being compelled to request the H-2A contract be cancelled due to “contract impossibility” (i.e., “for reasons beyond the control of the employer … that makes the fulfillment of the contract impossible”), DOL is now giving employers who must temporarily suspend operations due to the pandemic, whether in whole or part, the opportunity to do so for up to 21 days without advance approval from DOL.

In order to not run afoul of the three-fourths guarantee requirement, employers are encouraged to note for each worker the specific time period in which fewer hours or no work was offered and the reason(s) why (e.g., business closure or worker quarantine due to COVID-19 pandemic).

Workers Who Arrive After the Start Date

Employers who are concerned about their workers being delayed to the worksite due to the pandemic will not be required to file a new H-2A Application with a later start date or request an amendment of the start date on their certified application provided they notify the State Workforce Agency (SWA) and the Chicago National Processing Center (NPC) that, due to the delayed arrival of H-2A workers because of the COVID-19 pandemic, the employer agrees to extend positive recruitment of US workers. However, DOL cautions that a new H-2A application may be required if the duties needed to be performed have substantially changed; the timing of the need for labor has shifted such that a new labor market test is necessary; or if the employer is unable to reasonably anticipate when labor will be needed.

If the H-2A application is pending certification from CNPC, the employer may request an amendment to the start date due to a minor start date delay. However, anything more than a minor start date delay or if the employer is uncertain as to  whether or when work will begin, the employer would have to file a new H-2A Application. Employers are reminded that if they are requesting a delay in the expected start date, to notify Chicago NPC as to whether any U.S. workers have already departed for the place of work and, if so, provide an assurance that all workers who are already traveling will be provided housing and meals, without cost to the workers, until work begins.

Housing Inspections

If the SWA shuts down operations to the extent that it will not perform the requisite housing inspection, the FAQ’s say that the H-2A application will not be approved absent an approved inspection. DOL encourages employers to maintain communication with the SWA to resolve inspection delays.

FLC Surety Bonds

H-2A Farm Labor Contractors (H-2ALC) ordinarily must submit an original surety bond before their H-2A application is approved. DOL is extending the deadline to provide the original surety bond.  H-2ALCs impacted by the pandemic will be given additional time to submit the bond as follows: If for example, the deadline to submit an original surety bond falls between March 13, 2020 and May 12, 2020 (i.e., 30 days before the start date of work), CNPC will accept the scanned copy of the bond uploaded with the application, provided that the employer submits the original surety bond by May 12, 2020.

H-2A Application Fees

OFLC is making accommodations for employers who may have difficulty paying the labor certification fee, because of the COVID-19 pandemic. For certifications issued from March 13, 2020 through May 12, 2020, payment of the fee will be considered timely if received by the Chicago NPC no later than June 11, 2020.