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H-2A Farmworker Rights and Covid-19

May 29, 2020

Alejandra Cleves, Intern
Ed Yowell, Chair,
SFUSA Food and Farm Policy Steering Committee

Foreign hired farmworkers, primarily from Mexico, are the backbone of U.S. agriculture. We depend on about one million, who work long and hard, and these days, at greater than normal health risk, to plant, tend, and harvest much of the food we eat in the United States. 

About ten percent are here legally by virtue of  Section 218 of the federal Immigration and Nationality Act (via the H-2A program) that authorizes the lawful admission of temporary, nonimmigrant workers to perform primarily agricultural labor of a temporary or seasonal nature for less than one year at a time.  During this time of pandemic, usual program challenges are exacerbated – farmworkers are in short supply and farm employer-provided communal housing and transportation to and from farm fields provide heightened contact group infection opportunity.

H-2A, the Guest Worker Program Nobody Likes

The H-2A program has long received criticism from all sides – farm, labor, and immigration advocates. On one side, advocates and groups concerned with worker welfare deem the program exploitative. They maintain H-2A agricultural workers routinely face discrimination and harassment while working up to twelve hours a day with few or no breaks. Even when employers follow H-2A regulations, H-2A farmworkers don’t have benefits such as sick days and federal regulations do not provide for agricultural workers’ right to organize, engage in collective bargaining, and access to disability insurance.

On the employer side, industry organizations have criticized the program for not adequately meeting their labor needs, causing labor shortages which, even in the best of times, put the country’s food supply at risk.  Against the backdrop of  U.S. citizens’ traditional disinterest in doing skilled, but back-breaking, farm labor, their businesses continue to face shortages due to more aggressive immigration law enforcement and a bureaucratic, expensive H-2A visa process.

Partisan Differences on Fixing H-2A

When it comes to H-2A, there is little bi-partisanship.  Both ends of the Washington political spectrum have attempted to address shortcomings of the H-2A  program – very differently.

On July 26, 2019, the Trump Administration filed its Notice of Proposed Rulemaking regarding “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States.”  This rule would (1) revise the adverse effect wage rate (AEWR) and prevailing wage methodologies, (2) change the rule requiring employers to provide employment to any qualified, eligible U.S. worker, (3) and allow staggered worker entry and work start dates.  In regards to the rule, Farm Worker Justice commented, The U.S. Department of Labor (DOL) has proposed extensive changes to the H-2A temporary agricultural visa program that would harm farmworkers – both U.S. and foreign workers – and their families.  Among its many provisions, the proposed changes would lower many workers’ wages, shift (some) costs on to workers, weaken enforcement of housing safety standards and limit the ability of U.S. workers to obtain employment with H-2A employers.”.

In December, 2019 the House of Representatives passed the Farm Workforce Modernization Act of 2019, with almost unanimous support from Democrats and some limited support from Republicans.  Of the bill, Farmworker Justice commented, “The Farm Workforce Modernization Act bill provides a path to lawful permanent residency for undocumented farmworkers and their family members.  Removing the threat of immigration enforcement would help farmworker families and farming businesses… farmworkers would be better able to improve their wages and working conditions and seek enforcement when their limited labor rights are violated… These improvements would result in a more stable farm labor force and greater food safety and security to the benefit of employers, workers, and consumers…”   While the bill was passed by the Democratic House, it’s stuck in the Republican Senate. 

The Effects of Covid-19 on H-2A

The virus has deepened the existing problems within our food chain, including those in relation to the H-2A program.  For farmworkers, there is danger of infection in overcrowded employer-provided housing and transportation, lack of health insurance, inadequate protective gear, and loss of pay.  Meanwhile, many employers lack sanitary facilities to help prevent the virus from spreading and are experiencing an upended market distribution system threatening the national food supply. 

Congress and the Administration, with about 39 million Americans unemployed due to the virus, have strived to prop up the economy and secure the U.S. food supply.  In line with demands from the agricultural business community to secure foreign workers as the national growing season begins, the Office of Foreign Labor Certification and the Department of State are allowing agricultural employers to submit emergency H-2A applications. And, despite tightening restrictions on other forms of immigration, the Administration has facilitated the flow of H-2A farmworkers – federal requirements for home country, in-person interviews are waived for applicants whose H-2A visas expired in the past 48 months (previously 18 months) and for first-time applicants, without precluding histories, primarily prior instances of illegal U.S. entry.

Concern for the health and safety rights of H-2A visa holders, in addition to other farmworkers and food chain workers, is addressed by the recent federal Families First Coronavirus Response Act (FFCRA).

  • Through FFCRA, employees are entitled to 80 hours of emergency paid sick leave and 12 weeks of emergency childcare leave—with 10 of the 12 weeks paid. This includes H-2A visa holders working for employers with between 50 and 500 employees. Unfortunately, the free Covid-19 testing made available to uninsured people in FFCRA excludes many immigrants, including undocumented immigrant workers and H-2A farmworkers.
  • Small farm employers with less than 500 employees (99.8 % of farms employing 88.3 % of farmworkers) may exempt themselves from the obligation to provide paid leave due to school or childcare closures.  Nevertheless, small farm employers are obligated to provide Emergency Paid Sick Leave under FFCRA to employees who need leave because they: are subject to a quarantine or an isolation order; have been advised by a health care provider to self-quarantine; are experiencing Covid-19 symptoms and are seeking a medical diagnosis; or are caring for an individual who is subject to a quarantine order or has been advised to quarantine.

OSHA issued “Guidance on Preparing Workplaces for COVID-19”, however, following the guidance is an employer option, not a mandate.  OSHA stated, “This guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.”

Response to Opportunity?

Farmworkers, legal and illegal, are, and have been, essential to our ability to feed ourselves.  However, it took the Covid-19 pandemic for Congress and the Trump Administration to acknowledge that essentiality.  We must ensure that the essentiality of these workers, and our debt to them for feeding us during the pandemic, is not forgotten after Covid-19.  Their essentiality should serve as the basis for federal legislation that provides dignity, fair compensation and benefits, and a path to legal status and citizenship, if desired.