DHS and USDA Temporarily Amend Certain H-2A Requirements During COVID-19 National Emergency
The Department of Homeland Security, with the support of the U.S. Department of Agriculture (USDA), has announced a temporary final rule to change certain H-2A requirements to help U.S. agricultural employers avoid disruptions in lawful agricultural-related employment. These temporary flexibilities will not weaken or eliminate protections for U.S. workers.
Under this temporary final rule, an H-2A petitioner with a valid temporary labor certification who is concerned that workers will be unable to enter the country due to travel restrictions can start employing certain foreign workers who are currently in H-2A status in the United States immediately after United States Citizenship and Immigration Services (USCIS) receives the H-2A petition, but no earlier than the start date of employment listed on the petition. To take advantage of this time-limited change in regulatory requirements, the H-2A worker seeking to change employers must already be in the United States and in valid H-2A status.
Additionally, USCIS is temporarily amending its regulations to allow H-2A workers to stay beyond the three-year maximum allowable period of stay in the United States. Agricultural employers should utilize this streamlined process if they are concerned with their ability to bring in the temporary workers who were previously authorized to work for the employer in H-2A classification.
The temporary final rule is effective immediately upon publication in the Federal Register. If the new petition is approved, the H-2A worker will be able to stay in the United States for a period of time not to exceed the validity period of the Temporary Labor Certification. DHS will issue a new temporary final rule in the Federal Register to amend the termination date of these new procedures in the event DHS determines that circumstances demonstrate a continued need for the temporary changes to the H-2A regulations.
The H-2A nonimmigrant classification applies to alien workers seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States, usually lasting no longer than one year, for which able, willing, and qualified U.S. workers are not available.
State Authorizes Subsidized Childcare for Ag Sector Employees
The California Department of Education has provided guidance to state-subsidized early learning and care programs that will continue to provide services to currently enrolled families or begin to provide, what CDE refers to as, “Emergency Childcare” for essential workers and other populations. The “Food and Agriculture Sector” has been classified as a priority under this effort.
If you have employees struggling to secure and/or pay for childcare during this time, they can contact the Department of Education to locate a childcare provider in their area. More information including links to the CDE website and childcare services application is below.
CA Department of Education Management Bulletin (MB) 20-06
Contractors [Childcare facilities] who remain open, or reopen, during the State of Emergency should communicate with their current families that they expect them to remain at home during the shelter-in-place order unless they are an essential worker family. Families who choose to remain in care during this period, or return to care, will be presumed to be essential workers. Contractors may enroll new children in subsidized services through June 30, 2020, as provided below.
Enrolling New Children from Essential Worker Families in Emergency Childcare
Children of essential workers are now eligible to enroll in subsidized Emergency Childcare, subject to capacity, if all of the following apply:
- The family works as an essential worker as defined below. If the family includes a two-parent household, both parents/caregivers must either be essential workers or the other parent must be unable to provide care for the child due to incapacitation
- The family requires childcare to perform their essential work
- The family is not able to complete their work remotely
- The family assets do not exceed $1,000,000
- Families who meet these requirements are eligible and may receive Emergency Childcare services through June 30, 2020. Traditional documentation requirements set forth in California Code of Regulations, Title 5 (5 CCR) are waived. Instead, the following application procedures should be used to enroll all new families. Families enrolling as an essential worker must self-certify their income in order to prioritize income eligible families over non-income eligible families.
MB 20-06 COVID-19 Guidance regarding Emergency Childcare Services for Essential Workers and At-Risk Populations
- Please see the following associated forms:
CDE is working with the Administration to identify additional funding to support increased subsidized access to Emergency Childcare.
If you have questions or need more information, you can reach CDE’s Early Learning and Care Division at 916-322-6233.
U.S. Department of Labor Issues Guidance for Record Keeping; OSHA Enforcement Plan Posted
The Department of Labor has issued guidance for COVID-19 record keeping. The guidance can be found on the OSHA website here.
COVID-19 is a recordable illness and employers are responsible for recording cases of COVID-19 if the case:
- Is confirmed as a COVID-19 illness;
- Is “work related” as defined by 29 CFR 1904.5; and
- Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.
In areas where there is ongoing community transmission, employers may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. Accordingly, until further notice, OSHA will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where: (1) There is objective evidence that a COVID-19 case may be work-related; and (2) The evidence was reasonably available to the employer.
Additionally, OSHA has posted its Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), in which OSHA has defined workplace risk levels as follows:
- High and very high exposure risk jobs are those with high potential for exposure to known or suspected sources of SARS-CoV-2 that occurs during specific medical, postmortem, or laboratory procedures. Workplaces considered to have job duties with high risk of exposures to COVID-19 include, but are not limited to, hospitals treating suspected and/or confirmed COVID-19 patients, nursing homes, emergency medical centers, emergency response facilities…
- Medium exposure risk jobs include those with frequent and/or close contact with, i.e., within 6 feet of, people who may be (but are not known to be) infected with SARS-CoV-2. Workers in this risk group may have frequent contact with travelers returning from international locations with widespread COVID-19 transmission. In areas where there is ongoing community transmission, workers in this category, include, but are not limited to, those who have contact with the general public (e.g., in schools, high-population-density work environments, and some high-volume retail settings).
- Lower exposure risk jobs are those that do not require contact with people known to be, or suspected of being, infected with SARS-CoV-2, nor frequent close contact with, i.e., within 6 feet of, the general public. Workers in this category have minimal occupational contact with the public and other coworkers.
The Interim Enforcement Response Plan directs Area Offices to “process complaints from non-healthcare and non-emergency response establishments as ‘non-formal phone/fax,’ following the non-formal complaint and referral procedures.” The Plan further states:
- ADs (Area Directors) should prioritize resources and consider all relevant factors, such as whether the complainant alleges inadequate PPE due to supply issues, in determining whether to perform a non-formal phone/fax investigation instead of an on-site inspection.
- All other formal complaints alleging SARS-CoV-2 exposure, where employees are engaged in medium or lower exposure risk tasks (e.g., billing clerks), will not normally result in an on-site inspection. In such cases, Area Offices will use the non-formal procedures for investigating alleged hazards.
- Non-formal complaints and referrals related to COVID-19 exposures will be investigated using non-formal processing to expedite employers’ attention to alleged hazards.
- Facilities identified in Section I, above, as having high and very high exposure risk jobs, such as hospitals, emergency medical centers, and emergency response facilities, will typically be the focus of any inspection activities in response to COVID-19-related complaints/referrals and employer-reported illnesses.
Caltrans Issues Special Permits Authorizing Overweight Trucks to Deliver Emergency COVID-19 Supplies
Caltrans will temporarily issue special permits for overweight trucks transporting emergency supplies in support of COVID-19 relief and prevention efforts. These permits increase the maximum allowable gross vehicle weight from 80,000 to 88,000 pounds and will be valid until further notice.
To expedite the permits, Caltrans is performing advance review and analysis on major corridor routes, including:
The emergency permit guidelines states, “Food, paper products and other groceries for emergency restocking of distribution centers or stores” and that, “Delivery of essential goods outlined above does not include routine commercial deliveries, including mixed loads with a nominal quantity of qualifying emergency relief added to obtain the benefits of this emergency response.”
Special permits can be obtained by contacting the Caltrans permit department. As of right now, permits are being issued on a per-trip basis only and are subject to a permit fee.
More information can be found on the Caltrans website here.