Labor and Unemployment Q & A for Farm Businesses

Farm worker

Are farm employees and farm owners eligible for unemployment compensation? 

It appears so under certain conditions:

According to Governor Sununu’s Emergency Order #5, self-employed individuals and certain individuals providing services currently excluded from the definition of "employment” shall be considered eligible for unemployment compensation benefits where the individual's partial or total unemployment was necessary because:

  1. The individual has a current diagnosis of COVID-19;
  2. The individual is quarantined (including self-imposed quarantine), at the instruction of a health care provider, employer, or government official, to prevent the spread of COVID- 19;
  3. The individual is caring for a family member or dependent who has COVID-19 or is under a quarantine related to COVID-19; or
  4. The individual is caring for a family member or dependent who is unable to care for themselves due to the COVID-19 related closing of their school, child care facility, or other care program.

For specific details see: Governor Sununu’s Emergency Order #5, Pursuant to Executive Order 2020-04 Access to State unemployment benefits for individuals impacted by COVID-19,

For additional information, can contact the NH Employment Security Office by going to the following https://www.nhes.nh.gov/contact/index.htm and looking for your local office.

Note we are awaiting guidance to understand more specifics on the mechanisms to apply and any documentation that may be needed.   Once we have additional information we will update this post.  Thanks go out to Representative Howard Pearl for assistance with this topic.

In the meantime, you can also turn to Farm Commons to access print, as well as audio Podcasts on legal topics relative to Covid-19.  They are creating six new podcasts from March 23 – April 3.  

My farm uses H-2A workers and we have questions; where do we turn for answers?

See updated response, as of 4/23/2020

The following has been provided from Rob Johnson, NH Farm Bureau:

The U.S. Department of Labor, in response to increased telework due to the COVID-19 virus has issued a frequently asked questions (FAQ) document regarding The Office of Foreign Labor Certification activities, including the H-2A guest agricultural worker program. The FAQ document can be downloaded here: DOL-OFLC COVID-19 FAQs Round 1

Also, USDA has issued the following press release:

USDA and DOL Announce Information Sharing to Assist H-2A Employers

(Washington, D.C., March 19, 2020) - U.S. Secretary of Agriculture Sonny Perdue today announced a partnership between the U.S. Department of Agriculture (USDA) and the U.S. Department of Labor (DOL) to help facilitate the identification of foreign and domestic workers that may be available and eligible to transfer to other U.S. agricultural sector employers to fulfill critical workforce needs within the U.S. under existing regulatory authority during the COVID-19 pandemic.

“Ensuring minimal disruption for our agricultural workforce during these uncertain times is a top priority for this administration,” Secretary Perdue said. “President Trump knows that these workers are critical to maintaining our food supply and our farmers and ranchers are counting on their ability to work. We will continue to work to make sure our supply chain is impacted as minimally as possible.”

“American farmers and ranchers are at the frontlines of maintaining the nation’s food supply,” Secretary Scalia said. “In these unprecedented times, it is critical for them to have the workforce they need. This new partnership between USDA and DOL will help support our farmers, ranchers, and American families.”

Background:

USDA and DOL have identified nearly 20,000 H-2A and H-2B certified positions that have expiring contracts in the coming weeks. There will be workers leaving these positions who could be available to transfer to a different employer’s labor certification. The data, available on www.farmers.gov/manage/h2a, includes the number of certified worker positions, the current employer name and contact, attorney/agent name and contact, and the worksite address. This information will be a resource to H-2A employers whose workforce has been delayed because of travel restrictions or visa processing limitations. Employers should be aware that all statutory and regulatory requirements continue to apply. Employers are encouraged to monitor www.travel.state.gov for the latest information and should monitor the relevant Embassy/Consular websites for specific operational information.

USDA Press Releases No. 0197.20

FAQs for H-2A Employers Regarding COVID-19 by AmericanHort and CJ Lake

I am still waiting to learn when I might expect my H-2A workers.  Are there any updates about this?

Update, as of 4/23/2020: Temporary Rule Changes for H-2A Requirements During Covid-19 National Emergency

On April 15, 2020 the Department of Homeland Security, in conjunction with the U.S. Department of Agriculture (USDA), announced a temporary rule change for certain H-2A requirements in an effort to help U.S. agricultural employers.

The full document can be accessed through the following link: https://www.uscis.gov/news/news-releases/dhs-and-usda-move-protect-american-farmers-and-ensure-continued-flow-americas-food-supply

Highlights of the rule changes include:

  • An H-2A petitioner, with a valid temporary labor certification who is concerned that workers will be unable to enter the country due to travel restrictions can start employing ,workers who are currently in H-2A status in the United States immediately after United States Citizenship and Immigration Services (USCIS) receives the H-2A petition, but no earlier than the start date of employment listed on the petition.  To take advantage of this time-limited change in regulatory requirements, the H-2A worker seeking to change employers must already be in the United States and in valid H-2A status.
  • United States Citizenship and Immigration Services (USCIS) is allowing H-2A workers to stay beyond the three-year maximum allowable period of stay in the United States.
  • Agricultural employers should utilize 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. 
  • The temporary final rule is effective immediately upon publication in the Federal Register.

The H-2A nonimmigrant classification applies to alien workers seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States, usually lasting no longer than one year, for which able, willing, and qualified U.S. workers are not available.

Update, as of 3/30/2020: The short answer is that arrival of H-2A workers is hard to judge and is dependent on several factors. One of the greatest obstacles as of writing this question is ability of H-2A workers to access transportation to the U.S. and then to the state they are working in.

There have been changes made by the Department of State to try and remove other barriers.  Below is an excerpt from one of their press releases.

In response to significant worldwide challenges related to the COVID-19 pandemic the Department of State has temporarily suspended routine visa services at all U.S. Embassies and Consulates.  Understanding concerns about the impact on “H2A” Temporary Agricultural Workers, the Secretary of State has made the temporary adjustments in processing H2A visa applications described below. 

H-2 Visas and COVID-19

We are aware of the importance of the H-2 program to the economy and food security of the United States.  Secretary Pompeo, in consultation with the Department of Homeland Security, has authorized consular officers to expand the categories of H-2 visa applicants whose applications can be adjudicated without an in-person interview. 

Consular officers can, if they so choose, now waive the visa interview requirement for first-time and returning H-2 applicants who have no apparent ineligibility or potential ineligibility.   This expansion also increases the period in which returning workers may qualify for an interview waiver. Applicants whose previous visas expired in the last 48 months, and who did not require a waiver of ineligibility the last time they applied, do not need to be interviewed in-person if they are applying for the same visa classification as their previous visa.

We anticipate the vast majority of otherwise qualified H-2 applicants will now be adjudicated without an interview.  All applicants undergo the same security checks, regardless of whether they are interviewed or processed via interview waiver.  If the screening process determines an applicant may have a possible ineligibility for the visa, the applicant must have an in-person interview.

In light of the current drawdown in services and the inability to interview these applicants in person, cases with associated derogatory information will be suspended and refused under INA 221(g) until the resumption of visa interviews.  Consular resources and local government restrictions vary widely, and each consular section is reviewing its capacity to adjudicate visa applications during this worldwide pandemic.

Consular officers may still require an in-person interview for H-2 applicants in their country, based on circumstances in their country.  Consult with the relevant embassy or consulate in order to confirm the level of services currently offered.   

The Department intends to continue processing H-2 cases as much as possible, but will need to modify our procedures in order to facilitate the social distancing recommended by health authoritiesThis is a temporary action due to the COVID-19 pandemic. These measures will end no later than December 31, 2020.  This action has been taken because we are aware of the importance of the H-2 program to the economy and food security of the United States. 

For those having issues, USDA asks that questions regarding the H-2A program be directed to farmers.gov/manage/h2a or email aglabor@usda.gov.

NH has asked that all non-essential workers are to stay at home. Does that include agriculture?
Agricultural businesses are deemed “essential” in NH.  The State of New Hampshire has compiled a list of industry sectors that provide essential services and support to COVID-19 and the core missions of the State. View the full list Essential businesses mut develop strategies, procedures, and practices to allow for social distancing protocols consistent with guidance provided by the CDC and the Division of Public Health. [updated 3/27/20]

If an employee goes out with a diagnosis of COVID-19, or a health care provider's recommendation to isolate based on symptoms, can I as an employer REQUIRE them to have a health care provider's permission to return to work?

Below is information extracted from the U.S. Equal Employment Opportunity Commission website.  A more complete answer, as well as answers to related questions can be found at:https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

  • When employees return to work, does the ADA allow employers to require doctors' notes certifying their fitness for duty?

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.

As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

We need to look to the EEOC because this is an issue of discrimination on the basis of disability. Asking a person to not come to work is basically laying that person off. We can't lay people off because they are/become disabled (sickness/illness can be a disability). 

It's best to go straight to the EEOC on this because these issues are strange and new- the balance between protecting others from getting sick and "discriminating" against those who are sick is very delicate. EEOC guidelines may change.

The most risk-adverse approach is to provide sick leave with pay for folks who fall ill. If a person is still getting paid, they are not laid off. Sometimes, that isn't possible, and then we have concerns about discrimination on the basis of disability.

Do farms and other small businesses need to comply with the Family First Coronavirus Response Act?  Aren’t they exempt if following this law jeopardizes the viability of their business?

The Family First Coronavirus Response Act (FFCRA) became effective April 1, 2020.

As the U.S. Department of Labor’s website explains,

“FFCRA will help the United States combat and defeat COVID-19 by reimbursing American private employers that have fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for specified reasons related to COVID-19. The legislation will ensure that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus, while at the same time reimbursing businesses.”

The new law has many conditions to it.  To learn more about this, please click on the following link: https://www.dol.gov/agencies/whd/pandemic.  At this link you will find numerous resources, including two fact sheets that are very helpful: Families First Coronavirus Response Act: Employee Paid Leave Rights and Families First Coronavirus Response Act: Employer Paid Leave Requirements

In these facts sheets you will see a section on qualifying reasons for leave. These are as follows:

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; or
  6. is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

If you have employees that qualify for leave under ANY of the reasons above, utilize the fact sheets and resources in the links above to understand the duration of leave they are entitled to and tax credits to cover the costs of this leave.

One key provision of this new law is Employer Notice!  Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements.  Posters are available for free in numerous languages at the Department of Labor website (https://www.dol.gov/agencies/whd/pandemic)

If you are looking to understand the full law, the links below bring you to the actual Federal Register.

https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act

Please join us on April 29, from 7-8 pm for a presentation on this new law.  You can register for this at the following link:

https://extension.unh.edu/events/what-farms-and-small-businesses-need-know-comply-family-first-corona-virus-response-act-don%E2%80%99t 

What do I need to know about the Family First Corona Virus Act?

  • It’s a federal law, enforced by the U.S. Department of Labor Wage and Hour Division
  • It became effective April 1, 2020 and runs through December, 31, 2020
  • It applies all businesses and not-for-profit employers who have fewer than 500 employees, (this includes farms!) and all public agencies regardless of the number of employees.
  • Full and part time employees are counted. Count employees when an employee leave is initiated, meaning someone asks to leave based on Covid19 related issues.
  • Employees who are working and on leave are counted.
  • Temporary employees are counted
    • There are 6 qualifying reasons an employee can take leave related to Covid-19.  The employee:
      1. Is subject to a federal, state, or local quarantine or isolation order.
      2. Has been advised by a health care provider to self-quarantine.
      3. Is experiencing Covid-19 symptoms and is seeking a medical diagnosis. 
      4. Is caring for an induvial who is subject to a Federal, State, or local quarantine or isolation order or caring for an individual who has been advised to self-quarantine.
      5. Is caring for his/her child whose school or place of care if closed (or childcare provider is unavailable).
      6. Is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.
    • There is a small business exemption that applies only when all conditions below are met:
      • Small businesses with fewer than 50 employers
      • Employee’s leave is to care for his/her child whose school or place of care is closed or childcare provider is unavailable (reason number 5 above).
      • Requirements of FFCRA jeopardize business viability.
    • A Poster MUST be conspicuously posted, distributed online, posted on employer website, directly mailed or emailed to employees.
    • All employees are eligible for this program
    • See the resources below for rates of pay and other benefits eligible to the employee
    • Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. For more information, please see the Department of the Treasury’s website.

    Many resources and information can be found at the following Department of Labor website: https://www.dol.gov/agencies/whd/ffcra.

    If you click on the two links below you will find two fact sheets:

    Families First Coronavirus Response Act: Employee Paid Leave Rights

    Families First Coronavirus Response Act: Employer Paid Leave Requirements 

    The following link will take you to a frequently asked questions site that is very informative.

    Families First Coronavirus Response Act: Questions and Answers

    Below is a link that will provide you with a 2 hour webinar and its accompanying slides”

    Webinar: The Families First Coronavirus Response Act (FFCRA)

    • Webinar Slides
    • These links will provide you with a form to collect information if/when an employee seeks leave under this law:

    PDF: https://unh.box.com/s/odiofw2hccduo6fgo9h4eqj9ocwka9tv

    Word: https://unh.box.com/s/s43sndjs54z2cm3a9hepys8pswywzmqn