AWI PROGRAMS

Alien Labor Certification

FAQ # 9: Do I have to provide free meals to United States domestic workers and to the foreign workers imported under the H-2A Program?

The United States Department of Labor requires that all H-2A Program employers must provide non-commuting workers with no-cost housing (See FAQ # 6) and must provide “board” - meals or a method for the workers to prepare three meals per day. “Non-commuting” refers to workers who are not reasonably able to return to their residence within the same day. . [ USDOL Meal Housing Requirement : see 20 CFR 655.102(b)(4)]

The employer may choose between one of three methods of providing meals:

1. Employer Provided Meals: The employer may establish and operate a centralized cooking and feeding facility. This is equivalent to operating a restaurant or cafeteria and requires licensing by the Florida Department of Health, the Department of Business and Professional Regulation and the State or County Fire Marshall Office. Employers must study the economics of establishing a food service operation and hiring food service workers (cooks, food preparation workers, etc.), establishing vendor accounts, before deciding upon this method of providing meals for the H-2A foreign and United States domestic workers. Menus and plans must be submitted to the United States Department of Labor National Processing Center in Atlanta, Georgia, as part of the ETA-790 Application. Meals may have to be transported to the daily worksite if workers cannot return to the facility for a meal.

Employers may choose to provide

a. Three free meals per day.

b. Charge each worker no more than a specified cost for three meals per day.

c. Charge each worker up to a higher specified cost for three meals per day when there are specific cultural or other dietary needs. Special permission is required from the National Processing Center.

The rates that employers may charge for b. and c. are published each year in The Federal Register by the United States Department of Labor.

2. Employer Supplied Meals, Catered: Employers may arrange with a restaurant for catering of three meals per day for non-commuting workers. The H-2A Program ETA-790 application must explain the methods of supplying each meal (bag lunch, hot field meals, return to caterer or restaurant) and are subject to the same worker meal charge limits listed above.

3. Employer Supplied Cooking Facilities: The employer may provide at no cost free, convenient cooking and eating facilities of sufficient size and capacity (including fuel, cooking stoves, refrigerators, utensils, tableware and furniture) which would enable workers to prepare their own meals. Workers must be transported to stores at least weekly to purchase their food, or more frequently if needed. Employers are responsible for maintaining health, sanitation and safety standards.

Inspections: All employer operated or supplied kitchens and dining facilities will be inspected by the Agency for Workforce Innovation H-2A staff before the H-2A Program application is approved by the National Processing Center. The facilities will be inspected by the County Health Department Environmental Health staff. Employer operated facilities will also be subject to inspection by the Florida Department of Business and Professional Regulation, the State or County Fire Marshall and other enforcement agencies. Caterers will be subject to inspection by the appropriate enforcement agencies.

Employer supplied housing must be inspected by the ALC/H-2A Unit using the Occupational Safety and Health Administration (OSHA) 1910.142 Temporary labor camp regulation. [ OSHA 1910.142 ] A list of links to inspection forms and information will be found below.

In addition, the Florida Department of Health County Health Department for the county in which the proposed housing is located must inspect each proposed housing unit. Employers must contact the county Health Department for information and to schedule the inspections. Licensing fees apply. [ Florida County Health Department Listing ]

Other Florida State agencies may be responsible for specialized inspections. County and state fire marshals (for centralized kitchens and dining facilities), and the Florida Department of Environmental Protection (for wells serving over 50 people) are among the agencies that may become involved under appropriate circumstances.

Scheduling Inspections of Housing, Kitchens or Dining Facilities:

Two of the critical steps in obtaining the H-2A Program Certification from the National Processing Center involve housing and employer supplied food service operations or worker-use kitchens.

First, arrange for inspections well in advance of applying for the H-2A Program. Do a self-inspection of the housing using the H-2A Program OSHA inspection checklist and regulation. MANY HOUSING UNITS FAIL BECAUSE THEY ARE IN DISREPAIR AND CANNOT BE BROUGHT INTO COMPLIANCE IN AN ECONOMICAL FASHION. If housing is rented or leased, arrange with the landowner who will pay for repairs and maintenance, and arrange for the contract to be based upon the housing meeting the H-2A OSHA 1910.142 and Florida Department of Health inspection standards.

Second, be prepared. The OSHA inspections are performed under a very tight schedule and must be completed no later than 30 days before the date shown on the ETA-790 for the foreign and Domestic United States workers to arrive at the job reporting site. The schedule includes the time required for the initial structure inspection, then a five (5) Calendar Day period for repairs, then the reinspection. Simple things such as the water or electricity not being turned on, empty propane gas tanks, or dirty and unsanitary conditions may prevent the housing from passing the inspection.

Compliance Inspections: The County Health Departments, United States Department of Labor Wage and Hour, and other agencies such as the state and county Fire Marshals and Farm Labor Compliance Field Offices may perform compliance inspections. Agency for Workforce Innovation H-2A Program inspectors may inspect housing after the workers arrive

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AWI PROGRAMS

Alien Labor Certification