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?

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 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.