Understanding Workers’ Compensation Requirements for Employers with H-2A Workers

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Introduction

Crop and animal production can be an inherently dangerous field, with the Bureau of Labor Statistics estimating, in 2024, over 23,000 nonfatal injuries and approximately 300 fatal injuries associated with the industries. Workers’ compensation is a type of insurance coverage purchased by employers that compensates employees when they get injured while working. State law generally dictates which employers are required to obtain workers’ compensation, with varying requirements across the country. For example, in Maryland, employers with at least one covered employee are required to purchase workers’ compensation, unless an exemption applies.[1] The Maryland General Assembly adopted an exemption for some agricultural employers. Agricultural employers are exempt from Maryland workers’ compensation laws and regulations if their annual payroll is less than $15,000 for full-time employees or they have less than three full-time employees.[2] Even if the employer is exempt from providing workers’ compensation under state law, the employer can choose to purchase the coverage to protect both their business and their employees. For more detailed information on Maryland’s workers’ compensation requirements, please click here.

While the state normally determines which employers are required to purchase workers’ compensation, the federal government has weighed in when employers utilize federal programs like the H-2A visa program. Under the H-2A program, employers are required to purchase workers’ compensation coverage regardless of state law requirements or exemptions. The H-2A program is jointly administered by three federal agencies – U.S. Department of State, U.S. Department of Labor (DOL), and U.S. Citizenship and Immigration Services. The H-2A program is authorized under the Immigration and Nationality Act.

H-2A Program

The H-2A program allows employers to fill temporary seasonal agricultural jobs with foreign workers. To participate in the H-2A program, the job must be seasonal in nature, so jobs typically filled by H-2A workers include planting and harvesting crops and some livestock care and handling. The dairy and poultry industries typically cannot utilize the H-2A program because those are seen as year-round industries. However, there have been efforts in Congress to allow these year-round industries to access the program. There is not a cap on the number of H-2A visas that can be issued.

The U.S. Department of Agriculture has provided a website that outlines all of the steps and costs associated with participating in the H-2A Program. One of the steps, among many, the employer must complete is filing the Form ETA-790A with the U.S. Department of Labor.  The application form is then sent to the State Workforce Agency to approve or reject. The form requires employers to certify that they “agree to provide workers’ compensation insurance coverage in compliance with State law covering injury and disease arising out of and in the course of the workers’ employment.

If the type of employment for which the certification is sought is not covered by or is exempt from the State’s workers’ compensation law, the employer agrees to provide, at no cost to the worker, insurance covering injury and disease arising out of and in the course of the worker’s employment that will provide benefits at least equal to those provided under the State workers’ compensation law for other comparable employment.” So, in the case of Maryland, if the agricultural exemption applies to the employer but the employer is utilizing workers through the H-2A program, that employer would be required to purchase workers’ compensation or other comparable insurance coverage despite the state law exemption.

A certifying officer (CO) at DOL and the State Workforce Agency will review the submitted forms and either approve or reject the application. Prior to DOL issuing the temporary agricultural labor certification, under DOL regulations, the “employer must provide the CO with proof of workers’ compensation insurance coverage meeting the requirements [outlined above], including the name of the insurance carrier, the insurance policy number, and proof of insurance for the entire period of employment, or, if appropriate, proof of State law coverage.”[3]

When an employer has both H-2A workers and domestic workers, workers’ compensation or comparable insurance benefits must be provided to all employees. An employer is prohibited from offering domestic workers less benefits than H-2A workers.[4]

[1] Md. Code Ann., Lab. & Empl. § 9-201 (West 2026).

[2] Md. Code Ann., Lab. & Empl. § 9-210(b)(2) (West 2026).

[3] 20 C.F.R. § 655.122(e) (2026).

[4] 20 C.F.R. § 655.122(a) (2026).