Last updated: 5/13/2020
What H-2A Workers Should Know About Their Employment Rights During COVID-19
This is not legal advice. For free, confidential advice about your case, call us at (956) 996-8752 (if you live or work in Texas) or 866-721-7828 (if you work in Alabama, Arkansas, Kentucky, Louisiana, Mississippi, or Tennessee). Our services are available in various languages, free and 100% confidential.
Part 1: Your H-2A Contract Rights
What happens if my employer ends work early due to COVID-19?
Under the H-2A regulations, an employer may end work early if the work becomes impossible for reasons beyond the employer’s control. Depending on the facts, COVID-19 could qualify as a reason beyond the employer’s control, for example, if the employer loses customers or crops. This type of event is called an “Act of God.” If the employer cancels work for this reason, they must pay for your travel to your home or to your next employer. If you weren’t working many hours per week before the job ended, you also may be due additional pay under the contract’s ¾ guarantee provisions.
You may also be able to transfer to another employer. See Part 2: Your Right to Transfer Jobs.
If my work ends early, who pays the travel costs for me to go home?
If your work ends early due to issues related to COVID-19, your employer must pay for your transportation costs back to your home country or to your next employer. Your employer must also reimburse you for any costs you spent traveling from your home to your employer’s farm.
Can my boss force me to self-quarantine as soon as I arrive at work, even if I have no symptoms?
Yes, but the quarantine is still subject to the terms of your contract, the H-2A regulations, and federal and state laws. For example, if there is a state law requiring that your boss put you in quarantine, you may be eligible for paid leave under recent emergency laws passed by the federal government. You may also qualify for paid leave if you are being quarantined because you are getting tested for the virus or have symptoms of the virus. In addition, under your H-2A contract, your boss would still be required to fulfill the 3/4 guarantee by the end of your contract. A lawyer can answer your questions.
If I have to get tested for Covid-19, who pays for the test?
Under an emergency law passed by the federal government, you should be able to get tested for free. You can find testing centers here.
You can also sign up for health insurance. You have 60 days after you arrive in the U.S. to sign up. Call 1-800-318-2596 for help signing up (in English and Spanish). Health insurance would help cover costs if you were hospitalized with the virus.
If you are hospitalized due to complications with the virus, your bills might be covered by worker’s compensation. However, it will depend on the facts and the state where you were injured. A lawyer can answer your questions.
Who pays for things like masks and cleaning supplies that are necessary to keep us safe?
Under federal law, your boss must provide you with personal protective equipment (PPE), such as gloves, goggles, face masks, and respiratory protection, when they are needed to keep you safe while you are doing your job. What types of PPE your employer must provide you during the COVID-19 pandemic will depend on the risk of being infected or spreading the virus while working. It is your employer’s responsibility to evaluate the workplace for risks, identify and provide appropriate PPE, train you in the use of the PPE, maintain and replace faulty PPE, and periodically review and update the effectiveness of the PPE. With few exceptions, your employer must pay for any required PPE.
The CDC has recommended that all people wear cloth face coverings when in public or when social distancing is not possible; and that shared surfaces be cleaned regularly. If your employer is not taking precautions, consider taking your own steps to protect yourself at work (see Fact Sheet: What H-2A Farmworkers Should Know About COVID-19). If you do purchase your own PPE, be sure to save the receipts. You also have the right to talk to a lawyer.
What are my rights for staying safe if I live in employer-provided housing?
Federal law requires that employer-provided housing be equipped with: adequate windows for ventilation, sanitary equipment for cooking, sufficient space between beds (at least 36 inches), clean toilet rooms equipped with an adequate supply of toilet paper, and an adequate and convenient water supply that can be used for drinking, cooking, bathing and laundry purposes. The CDC has further recommended safe social distancing measures that could assist you in keeping safe. You should also check your contract for any promises made regarding the housing, either related to COVID-19 or to general health and sanitation.
If your employer is not taking steps to protect you in the housing, consider taking your own steps to protect yourself (see Fact Sheet: What H-2A Farmworkers Should Know About COVID-19), and you can talk to a lawyer.
There is an outbreak in my worksite and/or my employer provided housing, what are my rights and what can I do?
Tell your boss if they don’t already know. Your boss should then take steps to separate the sick individuals from other workers and prevent further spreading of the virus. See Farmworker COVID-19 Workplace Safety Plan for more information about what your boss should be doing. You should try to get tested and talk to a doctor about what steps to take. You have the right to speak up about your concerns. If you feel your boss is not taking enough steps to protect you, you can talk to a lawyer or make a complaint to the federal health and safety agency, OSHA. See Staying Safe at Work During the Coronavirus for more information.
Can I quit or refuse to work because I feel unsafe?
You always have the right to leave a job that you feel is unsafe. You also have the right to speak up about safety issues, and your employer may not retaliate against you for doing so. If you feel that there is an imminent threat to your safety and health, you may make a complaint to the federal health and safety agency, OSHA. See Staying Safe at Work During the Coronavirus for more information. If you have complaints about housing, you may also make a complaint to the Wage and Hour Division of the U.S. Department of Labor in your state.
You may also refuse to work if you feel that you are being asked to do something unsafe – but, because farmworkers have been deemed “essential workers,” (meaning they have to work through the pandemic), refusing to work may be grounds for being fired. A lawyer can talk to you about your rights if you are being threatened with being fired.
What if I get fired for complaining about unsafe conditions?
Under federal law, you have the right to speak up about safety issues without fear of retaliation. If you are retaliated against, and you work at a farm with a temporary labor camp that has been used in the past 12 months, you may file a whistleblower complaint with the federal agency in charge of worker health and safety, OSHA. For more information see Staying Safe at Work During the Coronavirus. You may also have other legal options depending on the terms of your H-2A contract and the state laws of the state you are working in.
What happens to my visa if I quit or am fired for speaking up about safety?
Under the H-2A program, if your work with your sponsoring employer (the employer on your visa) ends, you have the option of transferring to another employer or returning to your home country. There are new rules in place that make transferring to a different employer easier, though you would need to find another employer willing to do the transfer. See Part 2: Your Right to Transfer Jobs. If you do not transfer or go home, your visa will eventually become invalid and you will no longer have permission to be in the U.S.. A lawyer can answer questions about your visa if you are terminated or quit.
Who pays for my travel costs if I quit or am terminated for speaking up about safety?
If you quit because of legitimate safety reasons, your boss should pay for your transportation costs. But whether your boss must pay will depend on the facts. A lawyer can best answer questions about your rights before you quit, but they can also advise you what your options are afterwards.
Is my employer required to implement safety measures?
Under federal law, your employer is required to ensure that your workplace is free of hazards and conditions that could cause imminent injury or death. Depending on your work conditions, COVID-19 may qualify as a deadly health risk. Please refer to the Farmworker COVID-19 Workplace Safety Plan for more information on what steps your employer should be taking to protect you, and what you can do to protect yourself.
Can I Still Enforce My Rights if I Return to My Home Country?
Yes. You can enforce your rights from your home country with the assistance of U.S. attorneys. The only limitation on your claims may be a deadline that determines a date by which you need to take action (this is called a “statute of limitation”). Consult a lawyer if you have questions about your rights.
Part 2: Your Right to Transfer Jobs
Can I transfer to another job if I don't feel safe?
Yes, you are always free to transfer to a different H-2A job if you can find another employer willing to file the paperwork on your behalf. (See “How do transfers happen” for more details.)
Can my employer force me to transfer if my job ends early due to COVID?
No. You always have a choice about where you work and for whom. If your current boss doesn’t have any work for you to do, he might say something like, “You can either go home, or go to this other job.” In that scenario, you really have three options: (1) go home, (2) transfer to the job your employer found, or (3) transfer to a job with a different grower you know who’s willing to file the H-2A paperwork for you. The choice is yours, and you should not have to pay for your transportation costs regardless of which option you choose.
How do transfers happen?
The U.S. government has relaxed the transfer rules due to COVID-19. This means that, from April 20 to August 18, 2020, it will be slightly easier than normal for you to transfer from one H-2A job to another. But it’s still not easy.
You must be physically present in the U.S. on a valid H-2A visa.
You must find a new eligible employer. The new employer must already be participating in the H-2A program and have at least one open spot for an H-2A worker.
Your new employer must apply to U.S. Citizenship and Immigration Services (USCIS) to hire you on an H-2A visa.
How soon can I start work after I apply for a transfer?
It depends on when your new H-2A employer files for the transfer.
If USCIS receives the application before August 18, 2020, you can begin working as soon as USCIS receives the transfer application from your new employer (but no earlier than the new employer’s starting date for other H-2A workers).
While you are waiting for USCIS to either approve or deny the transfer application, you may work for 45 days after either the date USCIS receives the application or the employer’s H-2A start date (whichever is later). If the application is denied, you must stop working 15 days after the denial date. If the application is granted, you may continue working for the full contract period of the new H-2A employer.
If USCIS receives the transfer application after August 18, 2020, you can only begin working immediately if your new employer participates in the e-Verify program. Otherwise, you must wait until USCIS grants the application to start working.
Who pays for my transportation to the new job?
Your original employer is normally responsible for paying the cost of your transportation from your original job to the new H-2A job. You can also make an agreement with the new employer that they will pay your expenses. Either way, you should not have to pay your own transportation expenses.
How many times can I transfer? How long can I stay in the U.S., transferring from one job to another?
As long as a transfer is requested and approved on your behalf between April 20 and August 18, 2020, it doesn’t matter how many transfers you’ve done or how long you’ve been working in the U.S. After August 18, 2020, you cannot transfer if taking the new job will mean you’ve been in the U.S. for more than three years without a break.