COVID-19 highlights systemic flaws in H-2A visa program

This article was written by Amanda Dell, RDN, FLPC Intern.

While many Americans hunker down in their homes during the COVID-19 pandemic, thousands of farmworkers lace up their boots and head out into the fields to harvest ripening crops. This essential workforce includes over 100,000 H-2A visa workers, many of whom travel from Mexico on a temporary visa to fill seasonal agricultural jobs—jobs that most U.S. residents themselves don’t want to do.

In order to protect the nation’s food supply chain, the Trump administration has strengthened the H-2A program, despite temporarily banning many other visa programs. In April, the Department of Homeland Security issued a final rule to amend H-2A requirements to allow employers to apply for farmworkers earlier and permit workers to stay beyond the three-year maximum. However, the Trump administration did not account for the fact that H-2A workers would be at greater risk of contracting the virus due to systemic flaws in work and housing conditions that have persisted since the inception of the program.

As of early July, 4,539 people had tested positive for COVID-19 and 82 people had died in Collier County, Florida, where the agricultural community of Immokalee is located. This county, home to many H-2A workers, has a positivity rate at 12.9%, significantly higher than the State’s average rate at 8.32%. Furthermore, the virus has hit housing facilities for H-2A workers especially hard. In California, 204 farmworkers tested positive at Villa Las Brisa housing facility and at Alco Harvesting housing facilities, at least 14 workers have been infected and one has died.

The following key factors contribute to this increased vulnerability among H-2A farmworkers during the COVID-10 pandemic:

• Lack of medical care & testing: COVID testing is voluntary and many farm employers have opted out from testing their workforce. For example, in New Jersey, over 57 farms have barred medical teams from doing on-site testing. There have also been reports of rural hospitals and clinics discouraging H-2A workers from visiting, which is especially dangerous since H-2A workers often have limited access to transportation to pursue alternatives.
• Crowded Housing: H-2A regulations state employers must provide housing that meets Department of Labor OSHA safety standards. However, many farmworkers report crowded, unsanitary housing conditions that puts them at a greater risk of contracting the virus. Additionally, there have been reports that farmworkers with confirmed cases of COVID-19 have nowhere to isolate on the farm and must be placed elsewhere.
• Cramped Working Conditions: Recent events in meat and poultry processing facilities have exposed the dangers of working too close together. So far, 16,233 workers at these facilities have tested positive, resulting in 86 deaths. These cramped working conditions are a concern across the agricultural sector, particularly in packing In Yakima, Washington nearly 500 tree fruit packing workers have gotten sick.
• Fear to report illness: H-2A workers’ visas are tied to their employers, and the program has a long history of employers threatening to deport farmworkers for numerous reasons. This culture of fear can lead to workers remaining silent if they fall ill, putting them and their coworkers at great risk.
• Cut work hours: Due to limits in the supply chain, employers are letting crops rot in the field, thereby withholding from workers the paid hours they were promised. Strapped for cash, workers may go out into the fields even when they are experiencing symptoms.

The adequacy of employer responses to mitigate the spread of COVID-19 has varied from farm to farm. Some employers state they implemented protective measures such as providing PPE, hanging fire-retardant cloth between beds, and increasing sanitation protocols. But even in locations where these new measures are in place, outbreaks have still occurred. In June, late into the agricultural season, the Centers for Disease Control and Prevention and the Department of Labor issued interim safety guidance and suggested alternative housing plans. Though well-intentioned, these safety guidelines remain voluntary. While some have adopted these measures, others have gone as far as calling COVID-19 a “hoax”.

One legislative response that FLPC supports is Senator Merkley’s Frontline At-Risk Manual (FARM) Laborers Protection Act (S.4042) that was introduced on June 23, 2020. This bill appears to cover H-2A workers and requires agricultural employers to:

• Provide sick pay for 10 paid days of sick leave
• Provide pandemic premium pay at an additional $13 per hour
• Make efforts to maintain payrolls and limit worker layoffs and furloughs
• Implement CDC recommendations on sanitation and social distancing at worksites, employer-provided housing, and transportation

Recognizing the additional cost of these practices, this bill would provide grants to employers to provide premium pay and purchase equipment.

FLPC also continues to back changes introduced in The Heroes Act (H.R. 6800) that passed the House two months ago. This bill would support farmworkers by helping employers provide premium pay, prohibiting employers from retaliating against workers who share concerns related to COVID-19, and giving government agencies the authority to investigate reports of work-related transmission of the virus.

These bills are critical in ensuring farmworkers (who are disproportionately vulnerable to COVID-19) have the compensation, and health and safety protections they need while working to keep food reliably available for Americans.