July 15, 2020

Ag & the Law: COVID-19 Presents Challenges for H-2A Employers

During this global pandemic, it is often said “the virus doesn’t care…” The virus doesn’t care who you are. The virus doesn’t care where you’re from. The virus doesn’t care if you are a Republican or a Democrat. The virus doesn’t care if you are rich or poor.

If you rely on H-2A employees, the virus doesn’t care that it’s delaying your effort to secure visa interviews for your returning workers. The virus doesn’t care if you can’t completely manage social distancing in your employee housing.

With each passing month, we learn more about this virus. We now know the virus spreads most commonly through the air from person to person. People shed the virus by coughing and sneezing and talking and laughing. The virus lingers and spreads more in indoor spaces than outdoor spaces. Large groups are riskier than small groups. A person can be infected for several days before showing any symptoms of COVID-19. That makes this virus particularly crafty—it spreads among people who feel and appear healthy. And the virus can land on surfaces where it can live for days before being picked up and spread to others.

So when a group of apparently healthy workers are sitting, talking, and laughing for hours on a bus from their homes to their new H-2A employer, or socializing in group housing after a long day’s work, some workers will potentially be exposed to this virus.

Fortunately, farmworkers in Western Growers’ states are faring relatively well so far. That’s not the case everywhere. More than 50 percent of farmworkers in Florida’s largest agricultural communities are testing positive, according to Politico. I have spoken to members who have had dozens of their employees test positive for COVID-19. Most are asymptomatic or just have a cough. Most members have not yet had an employee required to be hospitalized. That’s good news; the majority of young and healthy people who are exposed experience no or only minor symptoms.

But that doesn’t mean we should let our guard down. Far from it. There have been more than two million confirmed cases and nearly 120,000 deaths in the U.S. at this writing, with credible models projecting the U.S. death toll will increase by 57,000 to 100,000 in the month of September.

Employers have a duty to understand the risks posed by—and to—newly introduced seasonal workers. According to the Centers for Disease Control and Prevention (CDC), employers need to re-emphasize safety measures that can slow the spread of the virus, including washing hands, maintaining a physical distance of at least six feet from others, and wearing a facemask.

Employers should also monitor the health of all workers daily, and isolate workers who have symptoms consistent with COVID-19, such as a fever over 100.3˚F, cough, shortness of breath or difficulty breathing, among others. It’s also critical that all employees are trained on recognizing the symptoms and preventing the spread of the novel coronavirus, including regular and effective handwashing. Employers should be stepping up cleaning and disinfecting all surfaces in employer-provided housing, transportation, common areas and restrooms.

Finally, employees who test positive or show symptoms of COVID-19 should be quarantined or self-isolating, according to CDC. H-2A employers should consider locating alternative H-2A housing to quarantine exposed or recovering workers. The Grower-Shipper Association of Central California has assisted members in Monterey County by securing “wrap-around” housing for participating H-2A employers to quarantine or isolate their COVID-19 exposed workers.

Western Growers, United Fresh and the American Frozen Food Institute have teamed up to develop COVID-19 guidance for produce operations. This guidance document provides useful advice and recommendations to help farm owners and operators prepare for seasonal operations including onboarding of seasonal workers, field and facility procedures, and shared/communal housing and transportation to prevent the spread of COVID-19.

In addition, the CDC, the U.S. Department of Labor (DOL) and Cal/OSHA have released guidance documents to protect agriculture workers from COVID-19. These guidance documents can be found on the WG COVID-19 Resources page of our website.

Visa Processing Delays and Partial Relief

To safeguard U.S. Consular workers in Mexico from potential exposure to the virus, interview waivers have been delayed all spring and into early summer. Interview waivers are typically granted to visa applicants who have no record of past immigration violations. Some workers who have had immigration issues in the past may have their “bar to admission” temporarily waived following a consular interview. This year those interviews aren’t happening or have been greatly reduced so many experienced, qualified H-2A workers are stranded in Mexico. H-2A workers from other countries including Guatemala and South Africa have also been marooned due to travel restrictions.

With the potential for workers being taken out of commission due to actual or potential exposure to the coronavirus, or not being able to bring workers into the U.S. due to visa or travel restrictions, the Trump Administration has temporarily added some much-needed flexibility for H-2A employers.

To help H-2A employers avoid employment-related disruptions, protect the nation’s food supply chain and lessen impacts from the coronavirus public health emergency, the Department of Homeland Security, with the support of the USDA, issued a rule to add temporary flexibility to H-2A requirements, without weakening  protections for U.S. workers.

For example, DOL is temporarily permitting H-2A workers and domestic workers performing under an H-2A contract to perform incidental duties that are not specifically listed in the job order if that becomes necessary due to COVID-19. And DOL is permitting H-2A workers to work at sites not specifically mentioned in the work order. H-2A workers can also move between H-2A employers if there is an agreement between employers and the employees to move between contracts.

The temporary rule also gives an H-2A employer with a valid temporary labor certification who has experienced a disruption in labor due to COVID the option to begin employing workers who are currently in the U.S. in H-2A status immediately after U.S. Citizenship and Immigration Services (USCIS) receives the H-2A petition, but no earlier than the start date of employment listed on the petition.

USCIS has also temporarily amended its regulations by allowing H-2A workers to stay beyond the three-year maximum allowable period of stay in the U.S. Agricultural employers can use this streamlined process if they are concerned with their ability to bring in the temporary workers who were previously authorized to work for the employer in H-2A classification.

No, the virus doesn’t care. But if we enact the necessary safety measures, we can show that we care about our workers and slow the spread of the virus in our workforce and communities. Western Growers has many resources to help keep employees safe. Western Growers H-2A Services is available to assist members access and navigate the H-2A program and overcome the labor challenges exacerbated by COVID-19. For information about Western Growers H-2A Services, contact WG Vice President and General Counsel, Jason Resnick ([email protected]) at 949-885-2253. We will get through this together.