Down on the Farm, COVID Concerns Sprout

Risks are growing for migrants and growers alike

Friday, May 29, 2020

With an estimated 85 percent of the U.S. salad crop sprouting from California’s Salinas Valley, it’s small wonder why the people who harvest it are deemed essential workers by the federal government. 

With those workers often subject to thankless, back-breaking and low-wage labor under a blazing sun, growers have long looked south of the border or even across the Pacific to fill their seasonal needs. However, before they can secure a temporary H-2A visa for a foreign national, that grower must comply with some of the most stringent labor rules and regulations. 

Migrant farm workers must be covered by higher minimum wage laws as well as protections including the Affordable Care ActGrowers must also provide inbound and outbound transportation, thrice-daily meals and free housing that may be in barracks, motels or dormitories. 

Compliance can be challenging under the best of conditions, which this year has not been—COVID-19 increasing the risk for grower and migrant alike. Meanwhile, the need for outside labor has been heightened by coronavirus precautions—so much so that in March the U.S. State Department waived the in-person interviews necessary for a migrant to obtain a guest worker permit. 

Though potentially a win-win situation, at least one lawyer wellversed in H-2A matters warns of the extra effort growers should make to be compliant. They, after all, assume much liability for the health of their hired hands, for whom social distancing may be impractical. 

A farm isn’t an office 

“Operating a farm isn’t like running a conventional business,” says Anthony Raimondo, president of Raimondo & Associates, the Fresno law firm he established in 2014 and whose specialties include farm-labor contracting. “When your workers get sick or test positive, they can’t just go back to Mexico. They need a safe place to isolate.” 

Pre-COVID, California and OSHA regulations required employers to protect workers from airborne infectious diseases. Those have been heightened with new guidelinesthe Injury and Illness Prevention Programs (IIPP)which emphasize the need for all employers to protect workers from on-the-job hazards, of which COVID may be the most serious. 

Under the new rules, agricultural employers must also provide training in a manner understandable to the workers whose native language is most likely Spanish. The workers should be informed of the latest information from the federal Centers for Disease Control and Prevention, which includes how the virus spreads, the symptoms, the need for frequent hand-washing and, if necessary, to isolate for up to two weeks if testing positive.

“Operating a farm isn’t like running a conventional business. When your workers get sick or test positive, they can’t just go home they need a safe place to isolate.”

But should those migrants be accommodated in high-density housing, there’s limited, if any, opportunity for privacy. Likewise, such cramped quarters and the actual chores put migrants at risk, and federal or state protections may be hard for them to access due to language and other barriers. 

“Be cooperative,” says Raimondo, whose clients include farms of all sizes. “It’s a difficult situation everyone’s facing, but you do have to assume responsibility for the people brought in under H-2A.” And be just as mindful of other rules and regulations that might be less obvious in the wake of a pandemic. 

Harvest time nearing 

In addition to evolving concerns on the COVID front, an employer in need of migrant labor must also abide by the federal Adverse Effect Wage Rate which means higher compensation. 

Once a year, usually in February, the U.S. Department of Labor issues such a list, the intent being a separate minimum for foreign nationals that’s not supposed to affect an American’s job prospects. California’s AEWR of $14.77 per hour—well above its standard $12 minimum wage—makes it the nation’s eighth highest. 

It remains to be seen whether the extra $2.77 will attract a sufficient agricultural work force this year. Growers now gearing up for the summer harvest of tomatoes and all kinds of fruit, they won’t want to be set back by years of labor shortages caused by the aging of a workforce that’s now about 45 years old. 

Prior to COVID, their operations may have been affected by the immigration crackdowns and an improved Mexican economy that lessens the incentive for younger people to venture north for a couple of months or longer. 

So it may be a perfect storm in Steinbeck country and other parts of the Golden State so necessary to keeping grocery shelves stocked. 

The coronavirus intensifies the need for more migrant labor that the State Department tries to accommodate against increasingly difficult demographics. Health agencies try to mitigate a contagious disease that’s especially threatening to an underclass often housed for months in uncomfortable if not substandard conditions.  

“And we’re dealing with an essential industry,” Raimondo reminds. “We have a greater diversity of crops in California than anywhere else in this world. We want to keep it.”

For the latest stories on how the legal community is responding to COVID-19, please follow Vanguard’s dedicated LinkedIn page. The stories are hosted on Vanguard’s blog.


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