Recently, the Centers for Disease Control (CDC) and Occupational Safety and Health Administration (OSHA) jointly issued an interim guidance to meat and poultry processing companies to facilitate continued operations and mitigate the risk of spreading COVID-19. This interim guidance document marks the first time the federal government has issued comprehensive recommendations to a specific industry on safe operation of a facility during the COVID-19 public health emergency.
The CDC recommends that meat and poultry processing companies develop a plan for continued operations that follows CDC, and state and local public health officials’ recommendations as well as incorporates guidance from other authoritative sources or regulatory bodies, such as the U.S. Department of Agriculture, as necessary. The interim guidance recommends a wide variety of strategies to reduce COVID-19 risks that should be incorporated into a facility’s plan:
- Engineering Controls
- Arrange work environments so that workers are spaced at least six feet apart.
- Modify workstations, if possible, so that workers are at least six feet apart in all directions.
- Consider using marking and signs to reminder workers to maintain their location at their station away from each other and practice social distancing on breaks.
- Use physical barriers, such as strip curtains, plexiglass or similar materials, or other impermeable dividers or partitions, to separate meat and poultry processing workers from each other.
- Consider consulting with a heating, ventilation, and air conditioning engineer to ensure adequate ventilation.
- Take steps to minimize air from fans blowing from one worker directly at another worker and remove personal cooling fans.
- Place handwashing stations or hand sanitizers with at least 60% alcohol in multiple locations to encourage hand hygiene.
- Modify clock in/out procedures by adding additional stations that are spaced apart to reduce crowding, considering alternative touch-free methods, or staggering times for workers to clock in/out.
- Remove or rearrange chairs and tables, or add partitions to tables, in break rooms and other areas workers may frequent to increase worker separation.
- Identify alternative areas to accommodate overflow volume such as training and conference rooms, or using outside tents for break and lunch areas.
- Administrative Controls
- Promote social distancing by encouraging single-file movement with a six-foot distance between each worker through the facility, and providing visual cues on social distancing.
- Review leave and incentive policies to ensure ill workers are not in the work place and modified to not penalize employees for taking sick leave.
- Consider modifying processing or production lines, shifts, break time, employee arrival and departure times, and staggering workers across shifts.
- Establish a system for employees to inform their supervisors if they are experiencing signs or symptoms of COVID-19 or if they have had recent close contact with a suspected or confirmed COVID-19 case.
- Provide access to soap, clean running water, and single use paper towels for handwashing or alcohol-based hand sanitizers containing at least 60% alcohol if soap and water are not immediately available.
- Educate workers on avoiding touching their faces, including their eyes, noses, and mouths, particularly until after they have thoroughly washed their hands upon completing work and/or removing personal protective equipment.
- Use of Face Coverings
- CDC recommends wearing cloth face coverings as a protective measure in addition to social and especially when social distancing is not possible or feasible based on working conditions.
- If cloth face coverings are worn in these facilities, employers should provide readily available clean cloth face coverings for workers to use when the coverings become wet, soiled, or otherwise visibly contaminated.
- Employers who determine that cloth face coverings should be worn in the workplace, including to comply with state or local requirements for their use, and ensure the coverings fit appropriately and are appropriately designed for their use.
- Education and Training of Workers to Reduce Spread of COVID-19
- Provide additional training and information about COVID-19, recognizing signs and symptoms of infection, and ways to prevent exposure to the virus.
- Employers should place simple posters in all of the languages that are common in the worker population that encourage staying home when sick, cough and sneeze etiquette, proper hand hygiene practices, and social distancing practices that can be read from a far distance.
- OSHA has provided enforcement discretion regarding the completion of training and other provisions of its health standards during the health emergency so long as the employer has made a good faith effort to comply with the applicable OSHA standard in situations where compliance was not possible given the ongoing pandemic, to ensure that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained.
- Cleaning and Disinfection of the Facility and Shared Spaces
- Ensure tools are regularly cleaned and disinfected using appropriate sanitizers identified by the U.S. Environmental Protection Agency for use against SARS-CoV-2.
- Establish protocols and provide suppliers to increase the frequency of sanitation in work and common spaces. Disinfect frequently touched surfaces at least once per shit and clean physical barriers frequently.
- Screening and Managing Employees for Illness
- Consider a program of screening workers before entry into the processing facility that uses a variety of strategies such as temperature checks and verbal screening regarding COVID-19 symptoms.
- Do not let employees enter the workplace if they have a fever of 100.4℉ or greater or if screening results indicate that the worker is suspected of having COVID-19.
- Separate workers who appear to have symptoms upon arrival at work or who become sick during the day from others at the workplace and send those workers home.
- Develop a plan that is compliant with the Americans with Disabilities Act to inform anyone that has come into contact with a worker who is confirmed to have COVID-19.
- Employers establish return-to-work plans for exposed and recovered employees that follow CDC Critical Infrastructure Guidance and the CDC interim guidance on “Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settings.” Husch Blackwell developed a COVID-19 Return-to-Work Resource Center for additional resources for employers.
- Evaluating Need for Personal Protective Equipment (PPE)
- OSHA regulations require employers to conduct a hazard assessment to determine if hazards are present, or are likely to be present, for which workers need PPE and to select and provide appropriate PPE to protect workers from identified hazards.
- Employers should provide demonstrations of proper donning and doffing procedures that emphasize care to avoid worker or PPE contamination.
- PPE such as face shields, gloves, and other face and eye protection may be appropriate depending upon the role of the employee.
- Employers should consider additional hazards created by poorly fitting PPE and the work environment.
- Employers should stress hand hygiene before and after handling all PPE.
- Create a Retaliation Free Workplace
- OSHA has provided recommendations to assist employers in creating workplaces that are free of retaliation and guidance to employers on how to properly respond to workers who may complain about workplace hazards or potential violations of federal laws.
President Issues Executive Order under Defense Production Act
On April 28, 2020, President Donald Trump issued an Executive Order to protect the meat and poultry production supply chain under the Defense Production Act (DPA). Under the Executive Order, the meat and poultry products are considered “scare and critical essential material to national defense” as outlined by Section 101(b) of the DPA. This designation allows the federal government to require companies to prioritize filling certain orders issued in support of national defense programs and allocate materials, facilities, and services to further national defense needs. The DPA also can allow the federal government to control the distribution of meat and poultry products in the market.
Accordingly, the Secretary of Agriculture is authorized to take all actions to ensure that meat and poultry processing facilities continue operations consistent with the CDC guidance. Secretary Perdue is also authorized to identify additional supply chain resources resources needed.
Triggering of the Defense Production Act is also important as the law provides for protection from liability for acting or failing to act in compliance with imposed obligations, even if the obligations are later determined to be invalid. 50 U.S.C. § 4557. For example, the liability protection provisions may shield meat and poultry companies against liability if workers become sick or die while operation continue pursuant to the order.
We will continue to monitor developments related to the COVID-19 outbreak and its impact on meat and poultry processors. Should you have any questions regarding this alert, contact Seth Mailhot, Emily Lyons, Avi Meyerstein or your Husch Blackwell attorney.