Farmworker Justice Update: 05/04/2020
COVID Crisis Continues to Impact Farmworkers
Farmworker communities remain in crisis as COVID-19 continues to spread in the United States and around the world. As essential workers, farmworkers continue to labor in conditions – at work, during transportation and in housing — that expose them to the risk of COVID-19. Farmworkers around the country report that many workplaces do not comply with CDC recommendations regarding social distancing, hand washing and protective equipment. Farmworker Justice is collaborating with farmworker-serving organizations and many other organizations across the United States to help farmworker families confront the very serious challenges caused by COVID-19. We are gathering information and devising strategies to help farmworkers and their organizations advance solutions for the health and well-being of farmworkers, their children and their communities. We are also supporting legislative efforts to protect farmworkers and other essential workers during this crisis, including, but not limited to, a COVID worker bill of rights championed by Sen. Elizabeth Warren (MA) and Rep. Ro Khanna (CA). Farmworker Justice’s statement on the COVID-19 crisis and its impact on farmworkers can be found here, and additional resources, including coalition letters to Congress and the Administration, can be found here.
COVID and the H-2A Program
The Trump administration has made some changes to the H-2A program in the name of granting flexibility to employers amidst the COVID crisis that have brought added uncertainty for workers without addressing their risk of infection. As previously reported, the Administration continued processing H-2A agricultural guestworker visas at U.S. consulates abroad, despite ending other immigration processes, and refuses to issue special safety and health protections against the risks these guestworkers face due to crowded transportation, housing, sanitary facilities and workplaces. On April 20, U.S. Citizenship and Immigration Services (USCIS) published a temporary final rule that allows H-2A program employers to more easily share H-2A guestworkers. The new measures will last 120 days, but could be extended further.
Meanwhile, a recent news story states that new White House Chief of Staff, Mark Meadows, is working with U.S. Department of Agriculture (USDA) Secretary Sonny Perdue to potentially lower farmworker wages by eliminating or reducing the Adverse Effect Wage Rate (AEWR) under the H-2A program. There have been previous efforts by the Trump administration and members of Congress to eliminate the AEWR, which Farmworker Justice and other advocates have been pushing back against.
Farmworkers and their organizations are concerned about this proposal. Farmworker Justice staff have been quoted in the Wall Street Journal, Mother Jones and other outlets about the wage-cut proposal and the harm it would cause to both guestworkers and U.S. workers. One worry is that the cut in guestworker wages would also depress domestic farmworker wages. Such wage cuts would be devastating to workers who already receive low wages, but would be especially inappropriate as Congress grants billions of dollars to agricultural employers and farmworkers are expected to continue to work as essential workers without adequate safety and health protections.
During the crisis there have also been calls to expand the H-2A program. Last month, the National Milk Producers Federation asked the USDA and the DOL to include dairy in the H-2A program during the COVID-19 pandemic, something they had already been advocating for previously. The H-2A program is limited to seasonal employment, and the large majority of dairy farm jobs are year-round. The H-2A program is premised on the idea that it may be difficult to find U.S. workers for seasonal farm jobs because they yield lower annual incomes than year-round jobs. Agricultural employers with year-round jobs should do what any other employer must do to attract and retain workers: improve wages and working conditions.
DOL Releases Second Quarter H-2A Data
The Department of Labor (DOL) recently released 2020 second quarter data on the H-2A program. The program numbers have grown significantly, with an increase of 13.0% in certified applications compared to the same period last year. The top states for this quarter in descending order are: Florida, Georgia, California, Washington, North Carolina, Arizona, Louisiana, Texas, South Carolina and Michigan.
Congress Passes Paid Sick and Family Leave for Workers
In the past few months, Congress has passed several aid and economic stimulus bills to address the COVID-19 crisis. One of these, the Families First Coronavirus Response Act (FFCRA), passed in mid-March, requires private-sector employers with fewer than 500 employees to provide their employees with up to two weeks of fully or partially paid sick leave for COVID-19 related reasons, and an additional ten weeks of family medical leave. The Department of Labor (DOL) can exempt employers with fewer than 50 employees if the employer argues that providing this leave would risk the viability of their business. There are large farming operations that employ more than 500 employees, and many farmworkers labor on farms with fewer than 50 employees. Farmworker Justice and other allies submitted a letter to DOL encouraging them to remove the small-employer exemption and require agricultural employers to provide their employees paid sick leave and implement CDC guidelines to keep workers healthy and protected from COVID-19. We are concerned about compliance with paid sick leave on farms where several hundred farmworkers are hired through farm labor contractors with each hiring fewer than 50 workers; as some farm operators claim that the farm labor contractor is the sole employer for purposes of employment-law obligations. The new provisions went into effect on April 1, 2020 and will last through the end of the year (December 31, 2020).
Trump Signs Executive Order Halting Certain Types of Family Immigration
On April 23, President Trump signed an Executive Order effectively halting new applicants trying to come from outside the United States on a green card, with few exceptions. It is important to note that H-2A visas and other categories of nonimmigrant workers are not affected by this executive order. The order will last for 60 days, but there is a possibility of extension.
Update on Farmworker Health and Safety
Promoting Farmworker Access to COVID-19 Testing
Farmworkers, due to their living and working conditions, are especially vulnerable to COVID-19. While there is no data about the number of farmworkers who have tested positive for COVID-19, it is clear that farmworkers are being exposed. Numerous media articles highlighted the extent of COVID-19 in agricultural worker communities. The Yakima Herald reported on April 23 that Yakima County has the highest rate of COVID-19 cases in Washington state. In Wenatchee, WA, 36 H-2A workers tested positive for COVID-19 at Stemlit Ag Services.
The latest federal relief bill, passed by the U.S. House of Representatives on April 23, includes $25 billion for COVID-19 testing. It is important that farmworkers be a priority for testing. Keeping farmworkers healthy requires extensive testing to ensure that workers who may be positive are able to isolate themselves to prevent widespread infection. But testing is only the first step. Employers must provide protections in the fields and in employer-provided housing, including access to sanitation supplies and personal protective equipment. Workers also need access to health care so they can get treatment if they do become ill.
Update on Health Centers and COVID-19
Migrant and community health centers continue to provide important health care services, including COVID-19 testing and treatment. The CARES Act, one of the COVID-related packages recently passed by Congress, allocated $100 billion to health centers. The National Association of Community Health Centers (NACHC) and others are requesting additional funding for health centers from Congress. Farmworker Justice, as a member of the Farmworker Health Network, works closely with migrant health centers to promote farmworker access to health care. More information about NACHC’s advocacy can be found here. To learn more about FJ’s work with migrant health centers or the Farmworker Health Network, you can go to our website.
Decline in OSHA Inspections and Lack of COVID Standards
On April 28, the National Employment Law Project (NELP) released a new report related to workplace inspections. The Trump administration promised to hire more inspectors, but that promise has remained unfulfilled. Instead, the numbers of inspectors continued to drop and is now at a 45-year low. Currently, the Occupational, Safety, and Health Administration (OSHA) only has 862 inspectors on staff, which is down from 1,006 inspectors in 2012. With that number of inspectors on staff it would take OSHA 165 years to inspect each workplace under its jurisdiction just once. These staffing shortages disproportionately affect people of color, including farmworkers. People of color are more likely to work in dangerous jobs, and that fact has become even more apparent under COVID-19.
OSHA has recently been flooded with COVID-19 related complaints. In spite of this, OSHA has not yet issued a specific standard on COVID-19 protections. Recently introduced legislation, the “COVID 19 Every Worker Protection Act of 2020,” which Farmworker Justice supports, calls for an emergency OSHA standard to protect workers, including farmworkers, from occupational exposure to COVID-19.
In the absence of federal action, various states have issued standards focused on the threat of COVID-19 exposure for farmworkers. Farmworker Justice and other allies are working diligently to encourage additional states to take action and for states to more vigorously enforce current farmworker protections during this worldwide crisis. You can find more detailed information regarding state-specific developments on this issue at FJ’s COVID-19 webpage, found here.
Farmworkers Be Aware of New COVID Symptoms
On April 27, the Centers for Disease Control (CDC) added new symptoms of COVID-19 to their growing list. Chills, muscle pain, headache, sore throat, and loss of smell and taste are now symptoms that farmworkers and others should look for as COVID continues to spread across the United States. As a new disease, health professionals are constantly learning and adapting as knowledge becomes available. If you experience symptoms that could be COVID-19, work with your healthcare provider to determine next steps.