Open Forum for NH Farmers, third in a series
Rachel Armstrong, lawyer and founder and Executive Director of Farm Commons, will join the open form on Friday 3/27 at 10am to answer questions around the legal implications of new laws programs and executive orders as a result of the coronavirus.
Review the audio recording here This will bring you to a m4a file.
Scribed notes from the Open Forum for NH Farmers, third in a series
Friday, March 27, 2020
Please note these are brief notes, and should not be used as legal guidance. Please consult a law professional for any legal guidance.
Olivia Saunders: Welcome to the call. Last night the Governor came out with a stay at home mandate until May. This should cover most farm businesses including farmers markets, garden centers, farm stores and more.
Rachel Armstrong founder of Farm Commons, a lawyer, to help farmers with legal questions, is with us today to answer legal questions.
Family First Corona Law:
Rachel: Emergency Paid Sick Leave act – neither of these apply IF it will put the operation out of business. Details of this are not known at this time. But neither of these are required if it threatens the viability of your business. Guarantees 80 hours of sick time paid (per 2 week period) – for full and part time employees , whatever their avg. 2 week work period is – when does farm have to provide this: Government Quarantine or isolation order, not a Stay at Home Directive. This emergency paid sick leave is more for IF you have confirmed Covid 19 or your family member has it and you have to be self-quarantined. If you are caring for an individual who is quarantined. Or you are providing for a child at home due to the Stay at home order since your childcare is closed due to COVID. Emergency Family Paid Sick Leave. Penalties are fines and imprisonment.
H2A – is different from other employment scenarios. Doesn’t want to comment on H2A right now. She thinks under this law you would not have to pay. Rachel will be doing a podcast on this. Migrant workers may be covered under H2A rules. Under this law (emergency paid sick leave) may not apply to H2A workers being put into voluntary quarantine when arriving at a farm. You are obligated to pay workers under H2A rules, so there may be guidance within the H2A rules that need to be followed.
Emergency Medical and Family Leave Act. Requires businesses to provide 12 Weeks paid leave for employees who cannot work because of school closures and child care provider closures. Starts 10 days in. First 10 days are not paid. 2/3 of regular pay up to $10,000 in total. Again if this threatens the viability of the business, there is an allowance.
You do have to give people their job back after the 12 weeks is up.
This is not about prevention measures, but more about if you shut down because of the virus or an employee is sick as confirmed by a medical professional, or caring for someone sick due to this, they get the 12 weeks.
Not enforced with less than 50 workers.
As a farm, if our employees cause a food contamination, the farm is liable. So it is best to have Best practices in place, maybe even more now. Other food born illnesses like E.coli are traceable, they have a fingerprint, we can determine which waterway the E.coli originated in. This is not the case with COVID. The science does not currently allow that.
We have social obligations, we have stay at home orders, but no, there is not a tremendous amount of legal risk connected directly to COVID transmission. The 12 weeks of paid leave is most suggestive because there is no civil penalties for business with fewer than 50 employees. The 2 weeks of required paid sick time does have penalties. Unemployment insurance may have greater legal obligations for farms, to be seen, will play out over time.
Seth Wilner: unemployment is open to farms and farm owners, as we understand it. We are not clear on the mechanism to this, have not received guidance from the state yet.
Rob Johnson: Guidance has not been released as of this call.
QUESTIONS: Will there be tax or penalties on unemployment?
Rachel: It depends. The situation is developing. The states’ rules may allow it to come from a different fund, meaning no penalties, but we do not know fully yet. Normally you cannot benefit from the system if you do not pay into it. However, with the new federal bill this may change. May include self-employed or gig workers.
QUESTIONS: I don’t start my employment until August; will those workers qualify for this benefit?
Rachel: it will be harder if your job has not started yet. It may not be possible to get unemployment benefits.
Huge volumes of claims being processed from Employment Security. They were looking at a restaurant worker being laid off and getting unemployment while working briefly for a farm, can they double dip. Work small hours, while still getting unemployment. This is still being scrutinized.
Can you explain how the tax credit works?
Tax credit for 100% of the employee paid qualified sick leave and wages, related to covid. You can credit that against the payroll taxes you put in payroll FICA, taxes social security Medicare. If a farm offers a sick leave, that is not the same as the COVID sick leave. No tax credit for farms with regular sick leave. But there is tax benefits for farmers that pay the Covid sick leave. Laws expire on December 31, do not know what will roll over, if this is when the benefit expires, not sure.
How does it work for H2A workers? You do not have to quarantine them H2A workers when they arrive unless they are actually sick. Prevention is not covered under this benefit. Quarantine is if someone has the virus, or cares for someone has the virus. You need a government quarantine order or a medical professional to advise self-quarantining.
There will be more Farm Law Podcasts coming in the future, including related to COVID19.
No restrictions for interstate travel for agriculture products into other states as of this recording. Jeremy: CT Dept. of Agriculture has a form that Farmers can print and carry with them.
Do you lay someone off that is sick with the disease? So they can get unemployment. Make sure person is eligible or provide them with sick paid time.
Seth: Small Business loans (w/respect to COVID) due not apply to most farms. As of now they do NOT apply to farms. Waiting to see what the Congressional Package will provide today. Stay tuned for the next week, there may be money coming from another avenue. 3.75% rate of loans right now. 2.65% loans are available for loans. Not a response to COVID. Ask: firstname.lastname@example.org if questions.
Matt with NH Agriculture Mediation: working on a resource list for producers on who does what and the services they provide for farmers. People can send items to Gail McWilliam Jellie at the NH Dept of Ag email@example.com .
If you are a farmer and you need a loan due to cash flow, you should contact FSA or SBA.
Call 223-6003 – USDA Farm Service Agency (Donna).
Our Extension FAQ, Gets updated daily: https://extension.unh.edu/resource/faq-about-covid-19-and-nh-agriculture
Our podcast channel for all things legal and COVID: https://podcasts.apple.com/us/podcast/farm-commons/id1022476437
Part of an ongoing series of forums for NH Farmers. UNH Extension will host an online forum for NH Farmers to share and discuss how they are adapting in these uncertain times. This will be an open platform for growers and producers to share concerns, strategies for success and other information about how the current public health disaster is affecting their operation.