Supporting Agricultural Businesses After Hurricane Helene

Hurricane Helene has left a trail of devastation across key agricultural regions in Florida, Georgia, North Carolina, and several other states. As many farm owners and farm labor contractors (FLCs) work through the recovery process, there are important considerations to keep in mind regarding H-2A workers, compliance, and disaster relief. At Seso, we recognize the hardships facing our agricultural community, and we're here to offer guidance and support as you navigate these challenges.

Worker Safety and Compliance After the Storm

Ensuring the safety of your workforce is the top priority. The Department of Labor (DOL) has released updated guidance for employers impacted by Hurricane Helene, which touches on key areas like housing, transportation, and employment conditions for H-2A workers. Below are essential points to consider:

• ¾ Guarantee Still Applies: Despite the disruptions caused by the hurricane, the 3/4 guarantee remains in effect for H-2A workers. Employers are required to offer workers at least 75% of the total hours listed in their job orders, regardless of the storm’s impact, unless the contract is formally ended early by way of a Contract of Impossibility (“COI”).

• End contract early with a formal COI determination: If you believe you can no longer fulfill your obligations under the job order and/or have lost the crop entirely as a result of the storm, you may request to end the contract early by formally requesting a COI determination. Employers must request a contract of impossibility determination in writing, and we recommend submitting supporting documentation of storm damage along with the written request. The DOL provides specific guidance on how to make this request and the circumstances under which it may be approved. See 20 CFR 655.122(o).

• Assess and report housing conditions: If the housing provided to your H-2A workers has been damaged, you must notify the DOL and SWA immediately. Temporary housing solutions may be available, but ensure they meet the standards outlined in the DOL's guidelines and inform DOL and the SWA of the change of housing location in writing.

• Maintain communication with workers: Keep open lines of communication with your employees, ensuring they are aware of any changes to work schedules, housing, or transportation.

For detailed guidance, refer to the DOL's FAQs on Hurricane Helene here.

Understanding the Restrictions on Storm Cleanup for FLCs

It’s crucial to note that the DOL has drawn a clear line when it comes to storm cleanup work for H-2A workers, particularly for farm labor contractors (FLCs). Based on recent guidance, FLCs are restricted from employing H-2A workers for storm cleanup activities off the farm. The DOL has not provided further clarity on this, but it is critical to stay compliant:

• On-Farm Cleanup for Growers Is Permitted: For farmers or growers employing H-2A workers directly on their farms, the DOL has explicitly stated that cleanup activities directly connected to the farm’s primary operations are permissible, regardless of whether those job duties were listed in the contract. This includes debris removal and other tasks related to getting the farm back to operational status.

• FLCs Face Stricter Limits: FLCs should not have H-2A workers performing storm cleanup off the farm under any circumstances. If your job order already included debris cleanup as part of your regular activities on the farm, it would be safe to continue that work. However, sending workers off-site for storm removal tasks, even if related to recovery, is not allowed. 

While the guidance may feel restrictive compared to previous years, particularly for FLCs, it’s important to adhere to the DOL's limitations to avoid any compliance issues. DOL’s FAQ guidance on the distinction between hurricane clean-up work performed on the farm in the employ of a farmer vs. that performed in the employ of an H-2ALC characterizes the issue as follows:

• Note that “clearing land of brush and other debris left by a hurricane” is specifically incorporated into the Department’s definition of agricultural labor or services at 20 CFR 655.103(c)(1)(i)(B) when those duties are performed by workers who are “[i]n the employ of the owner or tenant or other operator of a farm” and “the major part of such service is performed on a farm.” Accordingly, fixed-site employers may have workers employed under the terms of an H-2A temporary labor certification perform such duties, provided that the majority of those duties occur on the farms listed in the certification. However, H2ALCs cannot.”

Best Practices for Operational Recovery

Getting back to business after a natural disaster can be challenging, but there are steps you can take to ensure a smoother recovery:

1. Document losses and damages: Keep a detailed record of all damages to property, crops, and equipment. This documentation will be essential when applying for insurance claims or disaster relief.

2. Reassess compliance obligations: If the storm has affected your ability to comply with H-2A housing, transportation, or work requirements, contact the DOL to discuss potential accommodations up to and including a COI determination.

3. Update your emergency preparedness plans: As part of long-term recovery, it’s important to revise emergency plans to better prepare for future incidents. This includes creating or updating evacuation routes, communication protocols, and safety training for workers.

Operational Recovery and Accessing Disaster Relief

Recovering from Hurricane Helene will take time, but several resources are available to assist agricultural employers. Here’s what you need to know:

• Federal Emergency Management Agency (FEMA) Disaster Assistance: Farmers and FLCs in declared disaster areas can apply for FEMA assistance, which covers a range of costs, including temporary housing, repairs, and other recovery-related expenses.

• USDA Emergency Programs: The USDA offers emergency loans and grants for agricultural businesses affected by natural disasters. These programs can help you restore farm operations and cover crop and property losses.

• State and Local Aid: Many states are providing additional support through grants and recovery funds for businesses impacted by the hurricane. Make sure to explore local options in Florida, Georgia, and North Carolina.

For more information, review the DOL’s disaster relief guidance here.

How Seso Can Help

Navigating post-disaster recovery and staying compliant with complex labor regulations can be daunting. Seso is here to support you with tools to manage compliance, payroll, and workforce needs. Whether you’re dealing with H-2A job order modifications, labor certification changes, or payroll adjustments, our team is ready to assist customers during this critical time.

As you continue to rebuild in the aftermath of Hurricane Helene, know that help is available. The agricultural community has faced challenges before, and will overcome this one. If you have questions or need further guidance, don’t hesitate to reach out to our team at Seso. We are committed to supporting you and your workforce every step of the way.

FAQs

Will OFLC permit requests for extensions to deadlines or make other reasonable accommodations for employers impacted by major disaster(s) Hurricane Helene? 

Yes. OFLC recognizes that Hurricane Helene may have a significant impact on businesses and understands that some employers may not be able to timely respond to OFLC requests for information and other correspondence regarding the processing of applications or comply with applicable deadlines. Accordingly, OFLC will grant extensions of time and deadlines for employers affected by Hurricane Helene, including for delays caused by Hurricane Helene and those that occurred as a result of businesses preparing to adjust their normal operations due to Hurricane Helene.

Due to the impact of major disaster Hurricane Helene, I no longer have a business need for the workers employed under the temporary labor certification I received. What do I do? 

Employers who received temporary labor certification under the H-2A, H-2B, or CW-1 visa programs may request approval from the OFLC Chicago NPC Certifying Officer to terminate work under the job order and/or work contracts before the end date of work due to the impact of Hurricane Helene. An employer may submit a request for “contract impossibility” to the Chicago NPC Certifying Officer using the following method: 

Email: TLC.Chicago@dol.gov 

Include the phrase “Hurricane Helene” followed by the full OFLC case number in the email subject line. 

Phone: 312-886-8000

Important Reminders: 

• An employer continues to be responsible for its obligations under the work contract until receiving a favorable “contract impossibility” determination from DOL. 

• In the event that DOL makes a finding of contract impossibility, the employer should document its efforts to comply with each aspect of the contract impossibility provision including:

  • Fulfill a three-fourths guarantee for the time that has elapsed from the start of the work contract to the time of its termination;

  • Make efforts to transfer the worker to other comparable employment acceptable to the worker, consistent with existing immigration law, as applicable. If such transfer is not affected, the employer must:

    • (1) Return the worker, at the employer’s expense, to the place from which the worker (disregarding intervening employment) came to work for the employer, or transport the worker to the worker’s next certified H–2A employer, whichever the worker prefers;

    • (2) Reimburse the worker the full amount of any deductions made from the worker’s pay by the employer for transportation and subsistence expenses to the place of employment; and

    • (3) Pay the worker for any costs incurred by the worker for transportation and daily subsistence to that employer’s place of employment. Daily subsistence must be computed as set forth in the regulations at 20 CFR 655.122(h). The amount of the transportation payment must not be less (and is not required to be more) than the most economical and reasonable common carrier transportation charges for the distances involved.

Due to major disaster Hurricane Helene, my business has a critical need for H-2A workers to perform agricultural labor or services. However, I do not have sufficient time to prepare all required documentation in order to file a completed job order with the State Workforce Agency (SWA) and H-2A application with OFLC within the regulatory filing timeframes. Can I file an emergency H-2A application with OFLC? 

Yes. Under 20 CFR 655.134, OFLC may consider this situation to qualify as good and substantial cause and, if these employers are unable to meet the regulatory filing timeframes, they should request a waiver of the regulatory filing timeframe for this reason. 

The housing certified for workers is no longer available or cannot be used due to the impact of major disaster Hurricane Helene, can I use other housing that was not initially disclosed in the H-2A job order? 

If certified housing becomes unavailable for reasons outside the employer’s control, such as the impact of Hurricane Helene, the employer may substitute other rental or public accommodation housing that is in compliance with the local, State, or Federal housing standards applicable under 20 CFR 655.122(d). The employer must promptly notify the SWA in writing of the change in accommodations and the reason(s) for such change, and provide the SWA with evidence of compliance with the requirements of 655.122(d) for the substituted housing. If, upon inspection, the SWA determines the substituted housing does not meet the applicable housing standards, the SWA will provide written notification to the employer to cure the deficiencies with a copy to OFLC.

Some worksites listed on my certified Application for Temporary Employment Certification and job order can no longer support employment due to the unforeseen impact of major disaster Hurricane Helene. However, I have work at other worksites within the certified area of intended employment where work can be performed. Can I place workers at other worksites not specifically listed in the certified Application for Temporary Employment Certification but are still within the same area of intended employment?

Yes. A certified Application for Temporary Employment Certification is valid only for the number of H-2A positions, the area of intended employment, the job classification and specific services or labor to be performed, and the employer(s) named on the certified application, including any approved modifications. Due to the impact of Hurricane Helene, DOL will permit an employer to place H-2A workers and workers in corresponding employment at additional worksites not previously disclosed on the certified H-2A application, only as necessary due to the impact of Hurricane Helene, if such worksites are within the same area of intended employment certified by DOL.

For worksites that are outside of the certified area of intended employment and where the impact of Hurricane Helene constitutes good and substantial cause, the employer may file a new application under the DOL’s regulations for emergency situations at 20 CFR 655.134. A new application ensures that critical protections such as housing, transportation, and meals will be provided to all workers performing work at the worksites that are not covered by the certified H-2A application and job order. 

May I accommodate different arrival times for my workers due to the impact of major disaster Hurricane Helene, different from the start date on my certified Application for Temporary Employment Certification and job order? 

Yes. DOL recognizes an employer may have a need for greater flexibility in beginning work for some or all of their workers due to the impact of Hurricane Helene. Therefore, the DOL is waiving the need for employers to obtain formal approval from the CO for minor amendments to the start date of work to accommodate the arrival of workers at different times in this temporary, unique circumstance. This waiver includes the need for employers to “move up” their start dates of work in the event workers are needed earlier than expected due to the impact of Hurricane Helene.