The U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification has provided Florida Fruit & Vegetable Association (FFVA) with general guidance regarding additional flexibilities for H-2A employers impacted by Hurricane Ian. Most Florida citrus is harvested by temporary H-2A workers.
Following is a summary of the DOL answers to four questions about H-2A employer flexibilities due to the hurricane’s impact:
Q: Can workers perform debris removal and other clean-up duties resulting from a hurricane even where these duties were not disclosed in the H-2A job order?
A: Yes. H-2A workers and domestic workers can perform duties related to hurricane clean-up on farms even if such duties are not specifically listed in the job order due to the unforeseen/uncontrollable nature of the employer’s circumstances. However, work that is not performed on farms is not within the scope of agricultural labor or services, and work performed outside the area of intended employment is not permitted.
Q: Some worksites listed on my certified Application for Temporary Employment Certification and job order can no longer support employment due to the unforeseen impacts of the hurricane. However, there are 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 application, but which are still within the same area of intended employment?
A: Yes. Due to the impacts of the hurricane, the department will permit an employer to place H-2A workers and domestic workers in corresponding employment at additional worksites not previously disclosed on the certified H-2A application as long as such worksites are within the same area of intended employment.
Q: Due to the impacts of the hurricane, my workers may not be able to work for many weeks or months. Should I invoke contract impossibility?
A: Yes. Although there may be circumstances in which full-time work due to weather cannot be offered during the course of a given workweek, an employer who cannot offer work for many weeks or even months due to an act of God or other unforeseen events should invoke and execute the contract impossibility provision under the approved job order.
Q: Due to the impacts of the hurricane, can I amend my certified Application for Temporary Employment Certificate and job order to accommodate different arrival times for my workers?
A: Yes. The department recognizes that the domestic labor market has been significantly and temporarily disrupted due to the impacts of a hurricane and appreciates the need for employers to have greater flexibility in beginning work for some or all of their workers.
Read the DOL’s full answers to these H-2A guidance questions here.
Sources: FFVA and U.S. Department of Labor