COVID-19 Resource Library

 

With the major changes that COVID 19 has brought to American society and businesses come questions about the legal changes and consequences to the nation’s agricultural community.  This page is meant to provide resources and answers to some frequently asked ag-related questions that have arisen throughout the crisis. It will be regularly updated as new resources become available and new questions arise.  If you have a question that is not answered below, please contact us.    

Because this is such a quickly developing and changing situation, the information on this page may not reflect the current requirements and best practices. Please note that each question has a date upon which it was added or last updated, and many of the resources linked to will also include a date upon which it was written.  Linking to a specific law firm’s resources does not indicate any endorsement of or relationship with that firm or the information included within the resources.  Further, this information is provided for educational purposes only. It is not legal advice, and is not a substitute for the potential need to consult with a competent attorney licensed to practice law in the appropriate jurisdiction.


MAJOR TOPICS

ECONOMIC STIMULUS

Q: What legislation has been enacted to help deal with the impacts of COVID-19 in agriculture? (6/25/20)

To date, five items of legislation have been enacted. Each of those laws are supplemental appropriations legislation designed to provide various forms of economic assistance throughout the U.S. economy.  The most significant legislation is the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which was enacted on March 27, 2020. An official version of the CARES Act and accompanying legislative history is available at Congress.gov here.   The CARES Act provided authority and funding to support the USDA Coronavirus Food Assistance Program (CFAP), which is addressed below.  The other items of legislation enacted thus far are as follows:

  • March 6: Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020 (P.L. 116-123); official text, along with legislative history, is available via Congress.gov here.
  • March 18: Families First Coronavirus Response Act (P.L. 116-127); official text, along with legislative history, is available via Congress.gov here.
  • April 24: Paycheck Protection Program and Health Enhancement Act (P.L. 116-139); official text, along with legislative history, is available via Congress.gov here.
  • June 5: Paycheck Protection Program Flexibility Act of 2020 (P.L. 116-142); official text, along with legislative history, is available here.

The Congressional Research Service published a useful technical summary of legislation enacted in March and April titled, Supplemental Appropriations for Agriculture and Related Industries Due to COVID-19. That report is available here.

On May 15, the U.S. House of Representatives enacted the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act (H.R. 6800). The measure passed by a margin of 208-199 and would provide approximately $3 trillion in funding economy-wide, with several provisions specific to agriculture.  It remains to be seen whether the U.S. Senate will take up similar legislation and, therefore, whether there will additional economic stimulus legislation.  The official text of the HEROES Act is available here.   The HEROES Act is approximately 2,000 pages and proposes upwards of $3 trillion in spending.  The U.S. House of Representatives House Agriculture Committee has published a detailed, Title-by-Title summary with citations of the HEROES Act provisions relevant to food and agriculture, which is available here.

Q: There are a number of economic assistance programs available to the agricultural sector, but it is difficult to keep track of them all. Is there a helpful resource that would help me familiarize myself with various programs and how they operate? (6/25/20)

Yes.  A primary source is the USDA website that provides information, resources, and announcements of action it has taken — i.e., USDA loans, grading and inspection services, and food safety — to help the agricultural sector. The website is updated as warranted and is available here.  Additionally, the USDA Coronavirus Food Assistance Program (CFAP) website is available here. The USDA Farm to Family Food Box program website is available here.

Additionally, the Farmers Legal Action Group (FLAG), Inc. has published a farmer-friendly chart titled, Navigating COVID-19 Relief For Farmers. This chart summarizes many of the programs available to producers as well as key highlights regarding those programs. It also highlights several helpful tips for producers to consider.  The chart is available on FLAG website here.

Q: What is the CARES Act, and where can I find the official version of the CARES Act? (last updated 6/25/20)

The CARES Act is the acronym used to describe the Coronavirus Supplemental Appropriations Act (P.L. 116-136).  The Act became law on March 27, 2020, approximately one week after it was initially proposed in Congress. The Act is more than 300 pages in length and appropriates more than $2 trillion to mitigate the economic damage caused by COVID-19.  An official version of the CARES Act and accompanying legislative history is available at Congress.gov here.

The CARES Act is often referred to as “Stimulus Three” or “Phase Three” because it was preceded by two additional stimulus packages — the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 and the Families First Coronavirus Response Act.  As noted above, the CARES Act provides authority and funding to support the ongoing Coronavirus Food Assistance Program (CFAP).  Additional information regarding the CARES Act as well as CFAP is set out in the questions below.

Q: Is there a good overview resource that outlines the CARES Act? (last updated 4/17/20) 

Yes!  There are several.  One, by the Texas A&M Agricultural and Food Policy Center, is available here.  Additionally, the Farmers’ Guide to COVID-19 Relief, written by the Farmer’s Legal Action Group, is available here.  It outlines not only CARES Act relief, but also information about other federal agency changes in response to COVID.  Finally, another resource is titled CARES Act Questions for the Agricultural Industry, and is available here. This article addresses in detail numerous issues, including employment considerations, the interrelationship between the CARES Act and the Families First Coronavirus Response Act, tax considerations, and midsized business lending.

Q: Are farming operations eligible for the Paycheck Protection Program and the Economic Injury Disaster Loan Program? (6/25/20)

Yes.  However, when the PPP initially launched, there was considerable confusion regarding this question.  The following useful resources address this issue:

  • COVID-19 and Paycheck Protection Program:  Farms Presumed Included, available here(NC State Extension).
    • Note: this article also addresses another area of confusion — the Economic Injury Disaster Loan Program (EIDL program)
  • Small Business Benefits and the CARES Act: What Farm and Food Producers Need to Know (PennState Extension), available here.
    • Note: this article also addresses the EIDL program.

On April 16, SBA announced that funds appropriated under the CARES Act for the PPP had been exhausted.  However, on April 24, the Paycheck Protection Program and Health Care Enhancement Act was enacted into law.  That law is available here.  Also known as “Stimulus 3.5” this legislation updated important aspects of the CARES Act, including providing new funding for the Paycheck Protection Program and making “agricultural enterprises” eligible for the Economic Injury Disaster Loan (EIDL) program. An excellent explanation of the Stimulus 3.5 legislation and its application to agriculture, Congress Authorizes More Funds for PPP and EIDL and Says Farms Can Apply, is published by the Center for Agricultural Law & Taxation at Iowa State University and is available here.

On June 15, SBA announced that it would begin accepting applications for the EIDL and EIDL Advance programs for agricultural businesses and other qualified small businesses.  SBA makes additional information about this development, including the application form, available here.

Q: Of the $2 trillion appropriated in the CARES Act, how much is allocated for USDA (last updated 6/25/20)

The CARES Act allocated nearly $50 billion to USDA, spread across multiple agencies and for multiple purposes.  For an excellent explanation of the agency-by-agency breakdown of funding allocations, see the farmdoc daily publication Reviewing USDA Funding in the CARES Act, available here.  A portion of this funding is used for the USDA Coronavirus Food Assistance Program (CFAP), which is discussed below.

Q: What is the Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020, and how is it relevant to agriculture? (6/25/20)

The Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020 (P.L. 116-123) appropriated $8.3 billion to help prepare for and respond to the threat of COVID-19 to the U.S.  While the Act was an important development, it did not have a direct impact in regards to providing financial or economic support specific to the agricultural sector.  The legislation itself was primarily geared towards providing funding for the Department of Health and Human Services (including the Food and Drug Administration and the Center for Disease Control and Prevention), the Small Business Administration, and the Department of State.  The official text, along with legislative history and a summary of the Act, is available via Congress.gov here.

Q: What is the Families First Coronavirus Response Act (P.L. 116-127), and how is it relevant to the agricultural sector? (6/25/20)

The Families First Coronavirus Response Act (P.L. 116-127) built upon the foundation established under the Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020, providing additional funding and authorities to multiple agencies to help combat and offset the impacts of COVID-19.  The agriculture-related provisions under the Act provided additional funding and authority to USDA to expand nutrition programs, principally including the Nutrition Program for Women, Infants, and Children (WIC) and the Emergency Food Assistance Program (TEFAP).  Additionally, the Act’s provisions for Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act are applicable to qualifying agricultural businesses.   The official text of the Act, along with legislative history, is available via Congress.gov here.

Q: What is the Paycheck Protection Program and Health Care Enhancement Act (P.L. 116-139), and how is it relevant to the agricultural sector? (6/25/20)

The Paycheck Protection Program and Health Care Enhancement Act was enacted on April 24.   The official text of that law is available here.  Also known as “Stimulus 3.5” the Paycheck Protection Program and Health Care Enhancement Act updated important aspects of the CARES Act, including providing new funding for the Paycheck Protection Program and making “agricultural enterprises” eligible for the Economic Injury Disaster Loan (EIDL) program. An excellent explanation of the Stimulus 3.5 legislation and its application to agriculture, Congress Authorizes More Funds for PPP and EIDL and Says Farms Can Apply, is published by the Center for Agricultural Law & Taxation at Iowa State University and is available here.

Q: What is the Paycheck Protection Program Flexibility Act of 2020, and how is it relevant to the agricultural sector? (6/25/20)

The Paycheck Protection Program Flexibility Act of 2020 eased various requirements for the Paycheck Protection Program.  These changes include extended the loan repayment period for new loans from two years to five years and reduced the amount of the loan that must be attributed to payroll from 75% to 60%.  A more in-depth review of the changes instituted under the Paycheck Protection Program Flexibility Act is published by the Center for Agricultural Law & Taxation, available here.  The official text of the PPPHCA is available here.

Q: Has SBA issued guidance or regulations regarding implementation of the PPPFA? (6/25/20)

Yes, and it is a good practice to check the SBA website on a recurring basis for any new developments.   On June 16, SBA issued an Interim Final Rule titled, Business Loan Program Temporary Changes; Paycheck Protection Program—Revisions to the Third and Sixth Interim Final Rules.  That guidance was published at 85 Fed. Reg. 36997, and is available here.  On June 22, SBA issued an Interim Final Rule titled, Business Loan Program Temporary Changes; Paycheck Protection Program – Revisions to Loan Forgiveness Interim Final Rule and SBA Loan Review Procedures Interim Final Rule. That Interim Final Rule is available here.

For an excellent discussion of these two interim final rules, please see SBA Issues Guidance and Forgiveness Applications to Conform with PPP Flexibility Act, available here, published by the Center for Agricultural Law & Taxation at Iowa State University.

Q: What is the Coronavirus Food Assistance Program (CFAP) and where can I can find more detailed information about it? (6/25/20)

The Coronavirus Food Assistance Program (CFAP) is the USDA-led program designed to provide financial assistance to many producers across the United States.  The program makes available $19 billion overall, $16 billion of which is used for direct payments to producers of eligible agricultural commodities who have suffered at least a 5% price decline from January 15 to April 15, or who had losses due to market supply chain disruptions due to COVID-19 and face additional significant market costs (including unsold inventories).  The remaining $3 billion is used to fund the Farm to Family Food Box Program, which is described below, and operates under authority of the Families First Coronavirus Response Act. The application period runs through August 28.

The best resource for detailed information and updates regarding CFAP is the USDA’s CFAP website, available here.

Q: What is the Farm to Family Food Box Program and where can I find the best resource for additional information? (6/25/20)

The Family Food Box Program is part of the Coronavirus Food Assistance Program (CFAP), although it is not a part of the larger direct payments to producers of eligible commodities aspect of CFAP.  Under the Family Food Box Program, USDA has made $3 billion available to allow USDA Agricultural Marketing Service to contract with suppliers to purchase various food products and deliver them to food banks and others serving people in need of food.  As initially launched, the program is currently set to run through June 30.  The best resource for information regarding this program is the USDA Farm to Family Food Box Program website, available here.

Q: Where can I find the official text of the CFAP regulations? (6/25/20)

The CFAP regulations are published at 7 C.F.R. Part 9.  The initial regulations were published in the Federal Register on May 21 at 85 Fed. Reg. 30825.  On May 22 (85 Fed. Reg. 31062) and June 12 (85 Fed. Reg. 35799), USDA issued Correcting Amendments that are particularly important for livestock, dairy, and specialty crop producers seeking CFAP assistance.

Q: What commodities are eligible for CFAP? (6/25/20) 

As initially launched, CFAP applies to five commodity groups:  (1) non-specialty crops, such as hard red spring wheat, soybeans, and upland cotton), (2) wool, (3) livestock, (4) dairy, and (5) specialty crops.  For a listing of specific commodities within these five groups, visit the USDA CFAP page here.  USDA also set aside $637 million for additional commodities for which information could be submitted that demonstrated those commodities should be CFAP eligible.

Q: If a producer or operation participates in other federal farm programs, including the Paycheck Protection Program or Economic Injury Disaster Loan Program, is that person or entity eligible for CFAP? (6/25/20)

Yes.  The fact that a producer or operation participated in the PPP or EIDL does not affect a eligibility for CFAP.

Q: How is CFAP funded? (6/25/20)

CFAP is funded in two ways – by appropriations provided in the CARES Act and through borrowing authority of the Commodity Credit Corporation (CCC) as authorized by the Commodity Credit Corporation Charter Act.  In July, USDA’s CCC borrowing authority will increase by $14 billion. It is not known at this time how, when, or whether USDA intends to use the additional borrowing authority.

Q: What are the basic eligibility requirements for CFAP? (6/25/20)

 For full eligibility information, one should review the information set forth at 7 C.F.R. Part 9 as well as the information provided on the USDA CFAP web page here. That said, the basic eligibility require a “producer” or legal entity to submit the application made available at the USDA CFAP website (here) along with any required documentation, and to be “producer” having a share in the eligible commodity between January 15, 2020 to April 15, 2020, or between April 16, 2020 to May 14, 2020.

The CFAP regulations, see 7 C.F.R. § 9.2, define “producer” as a “person or legal entity who shares in the risk of producing a crop or livestock and who is entitled to a share in the crop or livestock available for marketing or would have shared had the crop or livestock been produced and marketed”.   Under CFAP rules, a contract grower can be a “producer” “if the contract allows the grower to have risk in the livestock”.

Q: Are there payment limitation requirements for CFAP? (6/25/20)

Yes, and there are unique payment limits specific to CFAP applicable to corporations, limited liability companies, and limited partnerships. Generally, CFAP payments are subject to $250,000 payment limit, which is applicable to the total amount issued for all commodities.  However, corporations, limited liability companies, and limited partnerships can receive up to $750,000 for up to three members who each provide at least 400 hours of active personal management or personal active labor.  This declaration is self-certifying, like much of the CFAP program, but is done so under the penalty of perjury and other applicable rules.

Q: Does CFAP impose Adjusted Gross Income (AGI) limits? (6/25/20)

Yes.  A person or entity is not eligible if the average AGI for the 2016, 2017, and 2018 tax years exceeds $900,000.  If 75% of more of the AGI derives from farming (including ranching and forestry), the applicant is allowed to receive CFAP payments in an amount up to the applicable payment limitations. If the applicant is a joint venture or general partnership, the AGI requirements are applicable to each member of the joint venture or general partnership.

Q: What are some noteworthy highlights regarding CFAP that might not be immediately obvious? (6/25/20)

For anyone interested in applying for CFAP, it is important to review the regulations at 7 C.F.R. Part as well as the USDA CFAP website.  This is important in understanding the program, but also because aspects of the program (i.e., eligible commodities, eligibility standards) may be modified as the program continues.  Some specific areas to note that may not be immediately obvious, include:

  • Applicants must comply with USDA Conservation Compliance regulations and policies, commonly known as “Swampbuster” and “Sodbuster”. Producers with a history of participating in federal commodity and conservation programs will already be familiar with these requirements and the attendant paperwork.  Producers without that history, such as many specialty crop producers, may want to factor learning more about these programs into the application process.  A producer’s local USDA Farm Service Agency will have resources to assist in this regard.
  • A producer can submit an application and subsequently submit the necessary documentation within 60 days. However, CFAP payments will not be issue until all documentation is submitted.
  • CFAP rules state that producers who are later determined to have received excess payments can be compelled to refund some or all of the CFAP payments received.
  • Producers who receive CFAP payments “or any other person who furnishes such information to USDA must permit” representatives from USDA or the Government Accountability Office to enter certain premises and inspect and/or copy certain records relevant to the application and receipt of CFAP payments.
  • For non-specialty crops such as soybeans and upland cotton that are otherwise eligible, may not be eligible based on the type of contract under which the commodity is sold. The USDA CFAP website has a comprehensive listing of the types of contracts for non-specialty crops that are eligible and ineligible.
  • All applications will be submitted through the USDA Farm Service Agency, but specialty crop applications will be spot-checked by the USDA Agricultural Marketing Service.

 Q: From an ag business and farming perspective, what taxation issues should I be thinking about? (4/28/20)

In normal times, agricultural taxation is a specialized area. The CARES Act presents new issues for individuals and businesses to consider. The Center for Agricultural Law & Taxation (CALT) at Iowa State University is an excellent resource for taxation issues involving the CARES Act and other tax-related issues implicated in the COVID-19 crisis.  The CALT web page devoted to COVID-19 taxation issues is available here.

 Q: Do H-2A employees count toward the 500 employee limit?  Are H-2A payroll expenses eligible for reimbursement through the Paycheck Protection Program (“PPP”)? (4/28/20)

No.  According to the Small Business Association interim final rule, only employees whose “principal place of residence is the United States” count towards the limit and have eligible payroll expenses.  Another resource helpful to understanding this question- as well as the PPP in general- is available at the Center for Agricultural Law and Taxation

Please note that SBA announced on April 16 that available funds for the PPP program under the CARES Act were exhausted, and applications are no longer being accepted. However, on April 24, the Paycheck Protection Program and Health Care Enhancement Act was enacted into law.  That law is available here.  More information available here.

 Q: Are medical or recreational marijuana businesses eligible for CARES Act funds? (4/9/20)

No, the SBA has issued guidance on the 7(a) loan program (which PPP is based on) prohibiting loans to marijuana businesses because they are illegal under federal law.  The fact that they may be legal under a particular state’s law is not relevant. For more information click here.

 Q: The federal government has instituted numerous regulatory changes in response to COVID-19.  Is there a comprehensive resource to assist in understanding these changes? (4/24/20)

Yes.  On April 22, the National Agricultural Law Center hosted a webinar titled, COVID-19: Regulatory Changes Impacting Food Production and Distribution, presented by John Dillard.  A recording of the webinar is available here.

LABOR & EMPLOYMENT

Q: Does the President’s recent Executive Order on immigration apply to agriculture? (6/25/20)

On June 22, President Trump issued an Executive Order titled, Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak.  The official text of the Executive Order is available via Whitehouse.gov here.  The Executive Order suspends, subject to certain exceptions, the issuance of H1-B, H-2B, J, and L temporary work visas.  Notably, the Executive Order does not apply to the H2-A program.

Q: What is a good general source of government information dealing with labor laws and policies specific to the impact of COVID-19 for employers and employees? (4/13/20) 

A primary source for information pertinent to the federal government response is the U.S. Department of Labor “Coronavirus Resources” page, available here.  The DOL page covers numerous issue areas such as workplace safety, supporting the labor needs of the agricultural sector, and numerous guidance documents.  The page will be updated, as needed.    

The USDA has published the “H-2A Visa Program” page as well, available here.  This page contains information on the status of foreign Embassies, guidance on closure of the Mexican border, and other information relevant to securing information on H-2A labor amid COVID-19.

In addition, the Association of State and Territorial Health Officials (ASTHO) has published a COVID-19 page that identifies state-by-state information.  Specifically, the ASTHO site provides an interactive national map that allows users to quickly access states’ COVID-19 web pages as well as contact information for states’ Department of Health.  The site is not agriculture-specific. The ASTHO site is available here.

Q: Can I use volunteers to help get around labor shortages due to the pandemic? (4/10/20)

The Fair Labor Standards Act still applies and there are requirements that for-profit businesses must abide by even in these unprecedented times.  There are some exemptions for agricultural employers that use less than 500 man-days of labor for each quarter during the previous year, use family members as labor, or pay workers on a piece rate basis; however there are also many restrictions and limitations on these exceptions.  Ag employers should consult with an attorney before using volunteer laborers.  

Q: What can I do about employees that may be ill? (4/10/20)

The U.S. Equal Employment Opportunity Commission has issued guidance on steps that employers can take such as asking employees if they feel ill, taking employee temperatures, and even requiring ill employees to stay home.  There may be requirements to keep this information confidential since it is medical information and some states may have additional requirements on confidentiality. For more information visit the EEOC COVID-19 page here or for further analysis visit the Fisher Phillips resource page here

Q: Has the Occupational Safety and Health Administration (OSHA) issued any rules for the workplace? (4/10/20)

Sort of!  They issued a Guidance on Preparing Workplaces for COVID-19 on March 19th.  While the guidance does not create new legal obligations, it contains information meant to assist employers in providing a safe and healthy workplace. 

Q: What do I do if one of my H-2A workers exhibits symptoms of COVID-19? (4/10/20)

Employers are required to provide suitable housing to H-2A employees for employees that are unable to reasonably return to their residence each day.  If employees start showing symptoms then it may be necessary to find other accommodations to house them in, such as hotels, if they are currently being housed with other workers.  State or local law may also require that individuals showing symptoms of the virus be quarantined for a period of time. For more information visit the AmericanHort Coronavirus Resource Center here.  To learn more about housing requirements visit the United States Department of Labor Employment & Training Administration Frequently Asked Questions available here.  To read more about each state’s authority to quarantine individuals please visit the National Conference of State Legislatures compilation available here.

Q: Can the government quarantine me or my employees? (4/10/20)

The federal government does have the authority to detain people suspected of carrying communicable diseases into the United States or between states.  For more information on federal quarantine authority visit the CDC website here.  States also have the authority to quarantine individuals; however the power and authority can vary between the states.  To read more about each state’s authority to quarantine individuals please visit the National Conference of State Legislatures compilation available here.

Q: Has USDA issued information regarding H-2A and COVID-19? (4/10/20)

Yes. USDA has published a page that addresses issues specific to H-2A and COVID-19 including information on embassy status and guidance for border closure. That page can be found here

Q: Will the notice issued by DHS that restricts non-essential travel between the United States and Mexico prevent H2A workers from entering the United States? (4/10/20)

No, the notice specifically stated that essential travel included  “individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Mexico in furtherance of such work),” which includes workers under the H2A program. N.C. State Extension has written more about this issue and that article is available here. However, it is possible that the border closure may cause slight delays in the arrival of incoming H2A workers. Phelps Dunbar has more on possible delays in H2A worker arrival here.

Q: Do I qualify for unemployment insurance if I am under mandatory quarantine? (4/10/20) 

A: Yes, under new guidance from the Employment and Training Administration, federal law allows states to pay benefits where an individual is quarantined with the expectation of returning to work after the quarantine is over. More information on this guidance can be found here. You can check your state’s specific unemployment insurance rules here.

Q: Do immigrant workers qualify for unemployment insurance if they’re unable to work? (4/10/20) 

A: Immigrant workers may qualify for unemployment insurance, however there are certain criteria in place to determine eligibility. For example, the individual must have a valid work authorization during the base period, at the time that they apply for benefits, and throughout the period during which they are receiving benefits.  The National Employment Law Project outlines more specific criteria here.

Q: Does the DOL offer information specific to the employer paid leave requirements set out in the CARES Act? (4/13/20) 

Yes. The DOL publication titled Families First Coronavirus Response Act:  Employer Paid Leave Requirements is available here.

Q: Are there any steps an employer should be taking now to help protect themselves from future claims? (4/10/20)

Employers are advised to keep documentation of their decisions, and their decision-making process during this turbulent time. Further guidance on how and what to document can be found here.

Q: Are there other H-2A problems or concerns that I need to be aware of as a result of COVID-19? (4/10/20) 

The DOL has already published three FAQs on COVID-19 and foreign workers available here, here and here.  More information is being made available at the DOL’s Office of Foreign Labor Certification available here.

Additionally, several law firms focusing on H-2A compliance have written FAQs including their perspective of the current situation.  Some of them are available here (Phelps Dunbar), here (Fisher Phillips), and here (CJ Lake LLC).  Additionally, attorneys from Phelps Dunbar took part in a “Ag Law in the Field” podcast, which is available here

Q: What if I no longer need my H-2A labor because of the pandemic?

Employers can contact the Department of Labor and request a contract impossibility determination from the Chicago NPC Certifying Officer to terminate work contracts before the end date. Until the request is granted the employer may still be required to pay for travel expenses and ¾ of the hours that they were supposed to work until the contract impossibility determination is issued. For more information visit the DOL FAQ page here.


CONTRACTS

Q: What if COVID-19, or circumstances surrounding it, prevents me from completing my part of the contract? (4/13/20)

Contract disputes can be difficult to navigate, but the first place that you look for answers is typically found in your contract itself.  Does your contract have a force majeure clause? Force majeure, or better known as an Act of God clause, can modify a party’s obligation to perform under a contract for unseen or uncontrollable events that renders the performance difficult or impossible to deliver.  It is very important to look at the exact words in the contract to see how broad the clause may be interpreted. If your contract does not have a force majeure clause then you still may have legal arguments available such as frustration of purpose, impracticability or impossibility depending on the unique circumstances in your state. Many individuals may be able to work out a satisfactory arrangement with the other party in the contract to resolve any disputes; however, if the dispute cannot be resolved between the parties then you will likely need an attorney.

 Q: What is impossibility for purposes of ending a contract? (4/13/20)

Something has happened that literally makes the contract impossible to complete.  You want to buy a specific bull from a livestock owner and the bull dies through no fault of your own before the sale goes through.  Nothing is mentioned in the contract about this possible event, but now it is impossible to complete. It is important to note that in states where impossibility is still used that the contract has to be impossible to perform.  For more information on impossibility click here.

 Q: What is commercial impracticability for purposes of ending a contract? (4/13/20)

Some event occurs that changes a basic assumption that all of the parties relied upon. The event must not be caused by the party wanting to get out of the contract.  Finally, that event makes the performance under a contract impracticable to perform. In the absence of a force majeure clause in your contract this is the legal remedy that is closest to that approach.  An example would be if you have a building that you are supposed to perform maintenance on and before you finish the job a tornado destroys the building. It may not be impossible for you to completely reconstruct the building, but it is definitely going to take much more time and money to reconstruct the building and in this case the more fair approach is to waive your duty to finish your maintenance. For more information on commercial impracticability click here.

 Q: What is “frustration of purpose” and how does it affect contracts that are impacted by a pandemic? (4/13/20)

Frustration of purpose is another legal doctrine that is similar to impracticability in that it is still technically possible to complete the contract, but some basic reason for the two parties to enter into the contract has been frustrated by some unforeseen event.  This unforeseen event then removes the value of the contract for one of the parties. For example, I have a contract with a crop duster to spray my field for weeds during the growing season, but before she is able to spray the crop a flood comes along and completely destroys it.  The crop duster can still perform her part of the contract, but with the crop destroyed there is no reason why I would want her to spray the field as the entire purpose behind the agreement has been frustrated by the flood. For more information on frustration of purpose click here.

Q: Where can I go to learn more about contracts or leases involving agriculture? (4/13/20)

The National Ag Law Center has a reading room dedicated to agricultural leases available here.  There is also an excellent handbook covering many leasing topics including checklists and sample lease forms available here.  For a short and simple explanation of agricultural contracts click here.

Q: Is there a resource that discusses force majeure specifically with respect to COVID-19 and agricultural contracts? (4/17/20)

Yes.  One such resource is titled COVID-19 & Force Majeure in Agricultural Contracts, and is available here.  


LEGAL ASSISTANCE

Q: Where can I find a lawyer? (4/13/20)

Many attorneys in the United States are still working, albeit maybe remotely!  If you have an existing relationship with an attorney in your area, reach out to them to see if they can assist you with your current concern.  If you’re trying to find an agricultural attorney in your area, one option is to look at the website of the American Agricultural Law Association.  In the lower right hand corner of the homepage, they have a searchable map of association members.

Q:  How can I get my important legal documents notarized during the COVID-19 pandemic? (4/16/20)

Many legal documents, including wills, are typically either required to be notarized or they become much more difficult to challenge if they have been properly notarized.  Because of social distancing requirements many states have either enacted laws or executive orders that establish procedures for notaries to complete their important work by performing it remotely.  To learn more about what states are doing to allow for remote notarization click here.  

Q: What if I need legal assistance, but have limited funds? (4/13/20)  

Most areas have some form of Legal Aid that can provide assistance for individuals in need.  While these groups can usually take a very limited number/type of cases, it is worth calling to ask if assistance can be provided in your situation.  Further, some law schools have legal clinics that provide similar assistance, typically for a specific type of cases (such as immigration, taxes, or housing).  Search for law schools in your area, then contact them directly.

Q: Are there any low cost legal assistance providers specific to agricultural operations? (4/13/20)

The Food Law Initiative at Pace Law School has launched the COVID-19 Legal Support Project to provide pro bono legal services by the Food and Beverage Law Clinic in association with a New York firm.  More information, as well as an email address to contact them for more information or assistance, is available here.  

ESTATE PLANNING

Q: What are my state requirements to write a will? (4/16/20)

For the basic state requirements to write a valid will click here and find your state on the list below.  If you are interested in agricultural issues with estate planning visit our Estate Planning and Taxation Reading Room available here.  Another great resource on tax and estate planning issues can be found at the Center for Agriculture Law and Taxation here.

 Q: Can I write out my own will by hand? (4/16/20)

Holographic wills are wills entirely handwritten and signed by the decedent before they pass away.  States vary substantially on what types of handwritten wills can be accepted for probate within each state.  It is generally a much better idea to work with an attorney in your jurisdiction in order to create a valid will and simple wills can be drafted fairly quickly so long as the client has a list of their assets, family members and instructions on how they would like the assets to be divided.  For general information on holographic wills click here.  Another good resource on holographic wills is available here.  It is critical that you look specifically at your state’s requirements to ensure that you can write a valid holographic will in your jurisdiction.

Q: Can I draft a will online? (4/16/20)

A: If an online will meets all the legal requirements in your state, it is likely to be considered valid. Much like a holographic will, it is very important that you are aware of the requirements for a valid will in your state and ensure that any will drafted online meets those requirements. Not all online will documents are the same, and it is generally considered good practice to have an attorney in your jurisdiction look over any online will you intend to draft. Click here for more information on what to consider when drafting a will online.

Q: How do I make family members and medical personnel aware of my wishes if I am incapacitated and unable to make decisions for myself? (4/16/20)

There are two basic ways to address this issue.  One is to create a living will or advance health care directive that provides written instructions on how you wish to be cared for if you become incapacitated.  You can specify what treatments or life support options that you wish for them to use or not use while you are unable to make decisions for yourself. To view basic state requirements on advance health care directives click here.  The second option is to designate a medical power of attorney and give someone that you trust the power to make decisions in your place while you are incapacitated.  There are numerous medical power of attorney forms online for free and one should select the form that best matches with the kind of authority that they wish to grant to their proxy.

Q: Where can I learn more about a Health Care Power of Attorney (HCPOA) and how to create one? (4/17/20)

One very helpful resource is titled COVID-19: Locating and Registering Health Care Powers of Attorney, available here.  The article has some generally applicable information, but also focuses on specifics relevant to North Carolina.  

SPECIALTY CROP/DIRECT MARKETING

Q:  Are there marketing guides to how to sell my farm products while markets are being disrupted by COVID-19?  (4/17/20)

An entity called Local Line has published a direct marketing guide on tips and strategies that you can use to sell agricultural products direct to the consumer.  This resource is available here.  The NALC has also drafted several state-specific direct marketing guides that cover an array of legal topics relevant during the COVID-19 outbreak available here.

Q: Are there any changes to my PACA protections and obligations as a result of the pandemic? (4/17/20)  

Yes. USDA has put out a series of FAQs relating to how PACA may be able to help producers during the COVID-19 emergency. USDA also includes information on how to contact the PACA Division and the PACA Customer Service line during the emergency. Click here to read those FAQs.

Q: I want to explore having my livestock slaughtered at a state-level facility and sell directly to customers.  How do I find out if this is legal to do? (updated 6/25/20)

Some states have laws that allow state meat inspection for the sale of meat but only within that same state. States’ laws vary widely in this regard.  The National Agricultural Law Center has compiled at 50-state survey of states’ meat inspection laws, which is available here. Additionally, the National Agricultural Law Center provided a comprehensive webinar on June 3 titled, Slaughter and Processing in the United States:  Oversight and Requirements.  A recording of the webinar is available here

DEFENSE PRODUCTION ACT EXECUTIVE ORDER

Q: Where can find a copy of the recent Executive Order issued by President Trump that relates to food processing companies? (4/29/20)

On the evening of April 28, 2020, President Trump issued an Executive Order titled, Delegating Authority Under the Defense Production Act With Respect to Food Supply Chain Resources During the National Emergency Caused by the Outbreak of COVID-19.  That Executive Order is available here.

Additionally, the White House issued a Fact Sheet accompanying the issuance of the Executive Order, which is available here. The USDA Press Release is available here.