Dear Secretary Scalia,
The Equal Justice Center (EJC) and Texas RioGrande Legal Aid (TRLA) write in response to the Department of Labor's request for comments during the national online dialogue regarding the implementation of the Families First Coronavirus Response Act (FFCRA or the Act), Public Law No. 116-127. We urge the Department of Labor (DOL or the Department) to consider the special needs of migrant and seasonal workers as it implements the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA) provisions of the Act.
EJC and TRLA have long histories of providing direct legal representation to low-income workers, including to migrant and seasonal workers. Since 2003, EJC has helped low-income working men and women, including guest workers on H-2A and H-2B visas, recover over $12.5 million dollars in unpaid wages. For over 40 years, TRLA has provided comprehensive civil legal services to residents of 68 counties in south and west Texas. TRLA also serves farmworkers statewide in Texas, Alabama, Arkansas, Kentucky, Mississippi, Louisiana, and Tennessee, including both U.S. workers and workers on H-2A visas. TRLA provides direct legal services to approximately 25,000 clients each year through its 44 practice teams.
The leave provisions of the FFCRA are of great importance to the country's migrant and seasonal workforce, including both domestic agricultural workers and seasonal workers present in the United States on H-2A and H-2B visas. These workers are essential to the national economy but are also unusually vulnerable to COVID-19. We therefore urge DOL to create guidance and outreach materials regarding the FFCRA that will safeguard the leave rights of all workers, including this particularly vulnerable segment of the population.
I. General Comments
EJC and TRLA joined the comments sent separately to the Department by the Center for Law and Social Policy (CLASP). We believe that implementing the suggestions in that comment will benefit all our low-wage worker clients, including migrant and seasonal workers. In addition to the requests memorialized in that comment, we request that the Department implement guidance clarifying the following points of general applicability to all U.S. workers.
A. Implement an appropriately broad definition of "son or daughter."
DOL has yet to clarify that workers may take emergency leave to care for not just their biological children, but for any child for whom they are the primary caregiver. The availability of leave to care for non-biological children is of primary importance for workers across the country who must see to it that all the children in their households are properly looked after during this public health crisis.
Both the EPSLA and EFMLEA adopt the FMLA's broad definition of "son or daughter." See FFCRA §§ 3102(b), 5110(4). DOL should immediately issue guidance highlighting that workers may take emergency leave if "a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis" is in need of childcare. 29 U.S.C. § 2611(12). This guidance should cross-reference existing interpretations, including the clarification that "persons who are in loco parentis include those with day-to-day responsibilities to care for or financially support a child." WHD Fact Sheet #28B (July 2015), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs28B.pdf.
B. Issue guidance regarding self-reported symptoms of COVID-19.
As pressures on the national health care system mount, workers are struggling to access the testing they need to determine whether they have COVID-19. Even after workers access the healthcare system, waits of a week or more for test results remain common. In light of this persistent uncertainty, the Department should issue guidance clarifying how workers are to confirm that they are "experiencing symptoms of COVID-19 and seeking a medical diagnosis," so as to qualify for EPSLA leave under Section 5102(a)(3) of the FFCRA.
First, the Department should issue guidance listing the relevant symptoms of COVID-19. The Centers for Disease Control and Prevention (CDC) has stated that symptoms include fever, cough, and shortness of breath. See Symptoms of Coronavirus, CDC, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited Mar. 27, 2020). The World Health Organization (WHO) has identified additional symptoms, including tiredness, aches and pains, and a sore throat. See Symptoms of Coronavirus, WHO, https://www.who.int/health-topics/coronavirus#tab=tab_3 (last visited Mar. 28, 2020). The CDC generally defines a fever as a measured temperature of at least 100.4°F. See, e.g., Check and Record Everyday at 4, CDC (Mar. 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/COVID-19_CAREKit_ENG.pdf; see also 42 C.F.R. § 70.1 (defining a fever as a temperature above 100.4°F for purposes of interstate quarantine). The Department should therefore issue guidance clarifying that a worker is "experiencing symptoms of COVID-19" within the meaning of the EPSLA if she has a fever of at least 100.4°F, a cough, shortness of breath, aches and pains, or a sore throat, or if she is unusually fatigued. The Department should update this guidance as necessary if the CDC's or WHO's list of recognized symptoms changes.
The Department should take care not to artificially inflate these requirements by requiring that the worker demonstrate, for example, a long-lasting fever, a severe cough, or difficulty breathing. As a legal matter, no such requirements exist in the text of the EPSLA. Congress could easily have stated that workers could take EPSLA only if they were, for example, "experiencing particularly severe symptoms of COVID-19." Because no language to that effect appears in the EPSLA, DOL may not insert it via regulation or guidance. Moreover, as a practical matter, if a worker is forced to go to work despite a mild case of COVID-19, that worker is virtually certain to infect coworkers, thereby worsening the spread of this pandemic disease. There is no guarantee that infected coworkers will develop similarly mild cases.
The Department should also clarify that employers must honor EPSLA leave requests based only on self-reported symptoms. An employer may not require a worker to produce, for example, a doctor's note attesting that the worker is suffering from COVID-19. The employee is, by definition, still "seeking" diagnosis and may not yet have been able to access medical care or testing. Indeed, the CDC recommends that individuals with suspected mild cases of COVID-19 stay home, contacting their doctor only remotely as necessary. See What To Do If You Are Sick, CDC, https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/steps-when-sick.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fabout%2Fsteps-when-sick.html (last visited Mar. 27, 2020). This course of action preserves critical medical resources and personnel for those with most urgent needs and minimizes the spread of infection. The Department should not implement contrary guidance that would require workers to put an unnecessary strain on an already taxed healthcare system.
C. Amend current guidance inserting an atextual "bona fide" requirement for caregivers seeking leave.
The Department has issued two fact sheets outlining, respectively, employee rights and employer responsibilities under the FFCRA. Both fact sheets suggest that employees are eligible for paid leave to care for a child or an individual subject to quarantine only if they demonstrate that their need for such leave is "bona fide." Families First Coronavirus Response Act: Employer Paid Leave Requirements (Mar. 2020), https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/ FFCRA-Employee_Paid_Leave_Requirements.pdf; Families First Coronavirus Response Act: Employee Paid Leave Rights (Mar. 2020), https://www.dol.gov/sites/dolgov/files/WHD/ Pandemic/FFCRA-Employee_Paid_Leave_Rights.pdf.
The term "bona fide" never appears in the text of the statute. Its inclusion in agency guidance will likely lead to confusion and interfere with employees' ability to take leave to which they are entitled. The Department should remove the term from all existing and future guidance, and should clarify that an employer cannot deny leave based on its belief that an employee's request is not sincere or their need is not genuine. Any worker who cares for an individual subject to quarantine or for a child whose school or child care provider is closed or unavailable should be presumed to have a need for leave.
D. Clarify available enforcement mechanisms under the EPSLA.
As is highlighted in CLASP's comment, robust, timely enforcement of the EPSLA is essential to fulfilling the purposes of the Act. Robust enforcement of the EPSLA will in turn rely on employers, employees, and the public at large having a clear understanding of the rights the law confers and the remedies it provides. To that end, the Department should explain what constitutes a "violation" of the Act and how violations will be remedied.
Section 5105 of the FFCRA states that "an employer who violates Section 5102 shall be considered to have failed to pay minimum wages" in violation of the Fair Labor Standards Act (FLSA) and "be subject to the penalties" described in the FLSA. The Department should clarify that a violation of any provision of Section 5102—including provisions regarding the sequencing of leave, prohibiting employers from requiring employees to use previously accrued leave before EPSLA leave, and prohibiting employers from requiring employees to find a replacement to cover their shifts while they are on EPSLA leave—will be considered a violation of the FLSA and will be penalized as such.
II. Comments of Particular Relevance to Migrant and Seasonal Workers
EJC and TRLA additionally urge the Department to give special consideration to migrant and seasonal workers in developing guidance regarding the leave requirements of the FFCRA. Employers of migrant and seasonal workers are aware that their workforce is not covered by many federal labor laws. The Department should therefore issue guidance clarifying that the leave provisions within the FFCRA apply with equal force to migrant and seasonal workers. Such guidance would also benefit non-seasonal workers who face similar barriers to accessing leave rights.
A. Clarify that the EPSLA and EFMLEA apply to migrant and seasonal workers.
Unlike some labor statutes, the FFCRA contains no exemptions regarding agricultural workers or guest workers. But because both workers and employers may incorrectly assume that these laws contain exemptions comparable to those in other labor laws, the Department should issue guidance clarifying that migrant and seasonal workers, including those present on H-2A and H-2B visas, are eligible for both types of leave.
With regard to the EFMLEA, Congress drew on the existing structure of the FMLA with limited modifications to the eligible employee and eligible employer categories. See EFMLEA, Sec. 3102(b) (modifying "eligible employee" to require employment for only 30 calendar days and adding an "employer threshold"). Although guest works are often ineligible for FMLA leave, the law itself contains no exceptions for migrant and seasonal workers or for agricultural workers. See, e.g., 29 U.S.C. § 2611(2), (4) (defining "eligible employee" and "employer"). DOL should therefore issue guidance clarifying that migrant and seasonal workers, including those present on H-2A and H-2B visas, are eligible for EFMLEA leave if they have "been employed for at least 30 calendar days by the employer with respect to whom leave is requested" and their employer has fewer than 500 employees. FFCRA § 3102(b).
The EPSLA does not include even those modest restrictions, instead borrowing the broad definitions of "employee" and "employ" that are used in the Fair Labor Standards Act. See FFCRA, § 5110(1)-(3). There is no doubt that employers "suffer or permit [their migrant and seasonal workforce] to work," 29 U.S.C. § 203(g). We therefore request that DOL issue guidance clarifying that the EPSLA applies to migrant and seasonal workers, including farmworkers.
B. Acknowledge the barriers vulnerable workers face in accessing a diagnosis.
We urge the Department to issue guidance acknowledging the difficulties migrant and seasonal workers may face in "seeking a medical diagnosis" and thus qualifying for leave under the EPSLA, FFCRA § 5102(a)(3), and to promulgate guidance accordingly.
Migrant and seasonal workers face unusually high barriers to accessing healthcare, even as compared to other low-income workers. In addition to their limited incomes, migrant and seasonal workers often lack health insurance, live in rural areas with limited resources, lack access to their own transportation, do not speak English, and are unaware of their own health-related rights and resources. The isolated areas in which they live and work are often dictated by their employers' business structures and preferences regarding employee housing. When combined with the broader challenges related to COVID-19 treatment and testing, these challenges will likely render many migrant and seasonal workers unable to access a definitive COVID-19 diagnosis or treatment. The Department should therefore clarify that a worker may be "seeking a medical diagnosis" and so be eligible for leave under the EPSLA for an extended period of time. A worker's difficulties in accessing care, including lack of health insurance, should not be a basis for denying her emergency sick leave. Similarly, an employer should never be able to arbitrarily cut short leave under the EPSLA because, in the employer's opinion, the worker had sufficient time to access care but has not yet received a diagnosis.
Of course, an employer of migrant and seasonal workers may independently wish to confirm whether his worker is suffering from COVID-19 or an unrelated respiratory illness. In such a case, the employer may not penalize the worker for systemic difficulties in accessing care. Instead, the employer must make such reasonable efforts as are within his means. For example, the employer should assist the worker in identifying clinics and testing sites in the area and provide all necessary information applicable for workers' compensation coverage, if the worker contracted the disease on the job or in employer-provided housing. If the employer normally provides the ill worker with his sole means of transportation, the employer should also arrange for the worker to be transported to a healthcare facility or testing site.
We urge the Department to clarify that under no circumstances may EPSLA leave be terminated because of difficulties related to accessing healthcare.
C. Clarify the quarantine-related responsibilities for employers who provide worker housing.
Migrant and seasonal workers frequently live in housing that is either provided or facilitated by their employers. We recommend that DOL adopt guidance to assist any person who provides employment-related housing or assists with the procurement or rental of the same.
Migrant and seasonal workers who request leave under the EPSLA because they have "been advised by a health care provider to self-quarantine," FFCRA § 5102(a)(2), may face unusual barriers in actuating that self-quarantine. These workers generally live in group housing provided by the employer. That housing rarely complies with the CDC's recommendations for self-quarantine procedures. For example, H-2A workers often live in barracks-style housing; by regulation, beds may be as little as three feet apart. See 29 C.F.R. § 1910.142(b)(3). In this scenario, the worker will be powerless to properly self-quarantine in the manner necessary to protect the public health and the health of the other workers. The responsibility to facilitate a suitable quarantine location therefore falls on the employer.
DOL should clarify employers who provide or facilitate worker housing must assist ill workers requesting EPSLA leave to access suitable self-quarantine facilities. The workers should never be charged for use of these facilities, because to do so would amount to impermissible retaliation, discussed further below.
D. Explain the application of the 50-worker exception for workplaces with a seasonally varying workforce.
The FFCRA gives the Department the authority to exempt small businesses with fewer than 50 employees from the requirements of the EPSLA and EFMLEA under certain narrow conditions. FFCRA §§ 110, 5111. Many employers of migrant and seasonal workers have fluctuating workforces, employing a small number of workers during their offseason and a significantly greater number during their peak. The Department should clarify that an employer can only qualify for the small business exemption if it has fewer than 50 employees at the time that EPSLA or EFMLEA leave is requested. An employer should not be excused from providing leave to its seasonal workers because of the size of its year-round workforce.
We also urge the Department to encourage businesses that employ fewer than 50 employees even at their peak, and that successfully seek an exemption from the requirements of the EPSLA, to abide by basic health and safety standards. Employers should be counseled not to force an employee who has COVID-19—or any similarly contagious, serious disease—to work. See 29 U.S.C. § 654(a)(1) (under the Occupational Safety and Health Act, employers are required to furnish to each worker "employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm").
E. Provide clarifying examples of impermissible retaliation.
The EPSLA prohibits employers from discharging, disciplining, "or in any other manner discriminat[ing] against any employee" who takes emergency paid sick leave or who files any complaint or institutes or participates in any proceeding under or related to the Act. FFCRA § 5014. This is a broad anti-retaliation provision, and the Department should issue guidance clarifying that it prohibits retaliation against workers who exercise their rights under the Act.
The Department should also issue guidance providing examples of impermissible retaliation, and should specifically focus on impermissible retaliation against migrant and seasonal workers. These workers are particularly vulnerable to retaliation and to threats of retaliation, as they are typically far from home; reliant on their employer for access to food, health care, housing, and transportation; and—in the case of H-2A and H-2B workers—generally unable to work for another U.S. employer if they are terminated. To protect migrant and seasonal workers, the Department should make clear that it is unlawful for an employer to report, or threaten to report, any worker who takes EPSLA leave to USCIS, including as an "absconder"; to require such a worker to return to their primary residence or country; to charge such a worker for special quarters needed to self-quarantine; or to threaten such a worker with any other financial or immigration-related consequence.
F. Ensure posting requirements are properly tailored to the needs of each workforce.
The EPSLA requires employers to post notice of employee rights under the law "in conspicuous places on the premises of the employer where notices to employees are customarily posted." FFCRA § 5103(a). Many workers in industries such as agriculture, forestry, and landscaping do not regularly spend time at a single location, but rather travel from jobsite to jobsite. To ensure that such workers are aware of their right to leave under the Act, the Department should issue guidance identifying alternative "conspicuous places" in which employers of itinerant workforces are required to provide notice. Examples of practical alternatives include in employer-provided housing, on employer-provided transportation, or in flyers distributed with employees' weekly or biweekly paychecks.
The EPSLA also directs the Department to make available a model of a notice that meets the requirements of the law. FFCRA § 5103(b). To ensure that all employees have equal access to accurate information, the Department should develop model notices in multiple languages, including Spanish, Haitian Creole, Kʼicheʼ, Yucatec Maya, Náhuatl, and other languages commonly spoken by migrant and seasonal workers. The Department should also develop methods to ensure that workers who are illiterate or under-literate have access to information about their rights.
Migrant and seasonal workers are among the most vulnerable workers in the nation, and yet they provide services that are essential to the national economy and wellbeing. We urge the Department to promulgate guidance and outreach materials clarifying how the FFCRA protects all workers, including migrant and seasonal laborers. Issuing guidance that addresses the needs of migrant and seasonal workers will benefit all workers.
We appreciate the opportunity to comment during the implementation process.
Equal Justice Center
Texas RioGrande Legal Aid
 A State Department Q&A released on March 26, 2020, explained that "[t]he H-2 program is essential to the economy and food security of the United States and is a national security priority." Q&A, Dep't of State (Mar. 26, 2020), https://www.agri-pulse.com/ext/resources/pdfs/H2A-State-Update-QA-3-26-20.pdf. Meanwhile, health experts are clear that the living migrant workers' living conditions place them at unusually high risk of contracting COVID-19. See Liora Engel-Smith, For Migrant Workers in North Carolina, Coronavirus May Be Hard to Avoid, N.C. Health News (Mar. 13, 2020), https://www.northcarolinahealthnews.org/2020/03/13/for-migrant-workers-in-nc-coronavirus-may-be-hard-to-avoid/.
 A copy of this comment is available at https://ffcra.ideascale.com/a/dtd/Sign-on-Letter-to-DOL-with-comments-on-FFRCA/978857-41081.
 See, e.g., Angie Leventis Lourgos et al., Some Chicagoans Report Lengthy Delays on Coronavirus Test Results: More Than a Week Later, 'I Still Have Nothing,' Chicago Trib. (Mar. 27, 2020), https://www.chicagotribune.com/coronavirus/ct-coronavirus-test-results-delay-20200327-24xzphkexrcyjfu5oosdjw7sou-story.html; Amanda Roley & Megan Carroll, Spokane Woman's Story Highlights Widespread COVID-19 Testing Delays, KREM2 (Mar. 27, 2020), https://www.krem.com/article/news/health/coronavirus/spokane-woman-waiting-for-covid-19-test-results/293-94023d82-af4d-4075-b014-7e976edebc40; Rachel Becker & Ana B. Ibarra, 48,600 Coronavirus Test Results Still Pending in California, CalMatters (Mar. 25, 2020), https://calmatters.org/health/2020/03/california-coronavirus-test-results-delayed-backlog/.
 DOL should not require that a worker exhibit more than one of these symptoms to access emergency leave. As more and more documented cases are showing, people who test positive for COVID-19 do not necessarily exhibit all of these symptoms—or indeed, any of them. See, e.g., Wei-jie Guan et al., Clinical Characteristics of Coronavirus Disease 2019 in China, New England J. Med. (Feb. 28, 2020), https://www.nejm.org/doi/full/10.1056/NEJMoa2002032 (approximately 44% of COVID-19 patients demonstrated a fever at the time of admission to the hospital, and 68% had a cough); CDC, Healthcare Professionals: Frequently Asked Questions and Answers (Mar. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html (noting the existence of asymptomatic infections of COVID-19).
 For example, migrant and seasonal agricultural workers, whether domestic or H-2A, are exempt from many of the protections of the Fair Labor Standards Act. 29 U.S.C. § 213(a)(6), (b)(13). Guest workers rarely qualify for standard leave under the FMLA, as an "eligible employee" is one who has worked for their employer for at least 12 months and for at least 1,250 hours of service with that employer during the previous 12-month period, 29 U.S.C. § 2611(2)(A), and guest workers are, by definition, temporary employees.
 See, e.g., Arthur L. Frank et al., Health Care Access and Health Care Workforce for Immigrant Workers in the Agriculture, Forestry, and Fisheries Sector in the Southeastern US, 2013 Am. J. Indus. Med. 1, https://www.migrantclinician.org/files/4%20Frank%20et%20al%20Health%20care%20access.pdf; Steven R. Feldman et al., Health Care Utilization Among Migrant Latino Farmworkers: The Case of Skin Disease, 2009 J. Rural Health 98, https://onlinelibrary.wiley.com/doi/epdf/10.1111/j.1748-0361.2009.00205.x.
 Employers commonly provide housing to domestic farmworkers, see 29 U.S.C. § 1823, and must provide housing to farmworkers present on H-2A visas, see 8 U.S.C. § 1188(b)(4). Employers are generally not required to provide housing for H-2B and other seasonal workers, but in practice often guide the workers' housing selection by providing, for example, a block of rooms at a local hotel where workers can stay.
 For example, North Carolina's Department of Health and Human issued guidance for employers who provide housing to migrant farmworkers that required employers to determine where they would safely house workers with COVID-19. See NCDHHS Interim Coronavirus Disease 2019 (COVID-19) Guidance for Migrant Farm Workers and their Employers, N.C. Dep't of Health & Human Servs. (Mar. 13, 2020), https://files.nc.gov/ncdhhs/Interim%20Guidance%20for%20Migrant%20Farm%20Workers_031320.pdf.
 The FLSA's anti-retaliation provision, which is identical to that in Sec. 5014(2) of the FFCRA, has been interpreted broadly to protect employees who assert their statutory rights. For example, in Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011), the United States Supreme Court held that the FLSA protected an employee who complained orally to his employer about the company's time clocks.