COVID-19 Safety and Compliance for Meat Processing FacilitiesMay 1, 2020 – Alerts
Workers in essential industries are increasingly concerned about their health and safety in the workplace. This is most clearly evidenced by the recent strikes, or threats of strikes, by employees at large manufacturing and distribution centers.
Meat processing plants are reporting an increasing number of employees contracting COVID-19, requiring these plants to shut down or consider shutting down. Agricultural workers have been deemed essential by every state. These employees are critical to maintaining the health and welfare of the animals, continuing crops and the production and processing of food items. Therefore it is critical that these industries keep functioning.
Guidance for Meat Processing Plants
Meat processing plants appear to be particularly susceptible to employee exposure to COVID-19. This is due largely to processing employees working in close proximity to each other, in long shifts and shared workspaces. In additoin, workers in the industry commonly travel to work together.
North Carolina Interim Guidelines
In North Carolina alone, at least five hog and poultry processing plants have reported COVID-19 cases. As a result, on April 20, 2020, North Carolina state and agricultural officials issued Interim Guidelines in order to prevent exposure and contain the spread of the virus in processing plants. The guidelines list three key components:
- Minimizing the risk for exposure to the virus;
- Early detection of people with symptoms of COVID-19; and
- Isolating suspected or positive cases from others until they are no longer infectious.
The North Carolina guidelines further dictate that processing facilities should:
- Create a COVID-19 Infection Control Plan;
- Conduct worksite assessments to identify COVID-19 risks and prevention strategies;
- Follow CDC interim guidance to implement safety practices for essential workers that may have been exposed to the virus;
- Conduct contact tracing;
- Follow the hierarchy of controls (Engineering controls; Cleaning/Disinfection/Sanitation; Administrative controls; PPE and Source Control) when implementing infection control practices, and
- Provide infection control information and training for all workers.
The Interim Guidelines are quite detailed, but the takeaway is that processing facilities in North Carolina need to identify and address the risk areas at the facilities (including transportation to the facilities), plan ahead for how to operate with a reduced workforce, adapt workspaces to allow for social distancing, pre-scan employees for fevers (>100.4 F) and other symptoms prior to entry into the facility, and require sick employees to stay home. These interim guidelines will be updated as more research and information is gathered. While the Interim Guidelines only apply to meat processing plants in North Carolina, they provide helpful recommendations that can assist plants in other states ensure worker safety.
CDC and OSHA Interim Guidance
On Sunday, April 26, the Centers for Disease Control and Prevention (CDC) and the Occupational Health and Safety Administration (OSHA) also issued interim guidance for meat and poultry processing facilities in all states. Similar to the North Carolina guidance, the CDC and OSHA recommend changing processing lines and workplace setups to permit social distancing between employees. Importantly, the CDC and OSHA guidance recommends that meat and poultry processing facilities work directly with the appropriate state and local public health officials and OSHA professionals to develop their COVID-19 assessment and control plans.
The CDC and OSHA interim guidance is in addition to prior OSHA guidance on the responsibilities of employers to provide safe workplaces during the COVID-19 outbreak. This guidance provides that employers should review the risks their employees face and implement mitigation plans. Given this guidance, employers should:
- Develop an infectious disease preparedness and response plan;
- Prepare to implement basic infection prevention measures;
- Develop policies and procedures for efficient identification and isolation of sick individuals;
- Develop, implement and inform workers of workplace flexibilities and protections; and
- Implement workplace controls, including engineering controls, administrative controls, and use of personal protective equipment.
Details on how to implement this OSHA guidance are available here.
Executive Order Requiring Meat Processing Plants to Remain Open
On Tuesday, April 28th, President Trump signed an executive order requiring meat processing plants to stay open under the Defense Production Act. The order states that closures of meat and poultry processing facilities “threaten the continued functioning of the national meat and poultry supply chain, undermining critical infrastructure during the national emergency. Given the high volume of meat and poultry processed by many facilities, any unnecessary closures can quickly have a large effect on the food supply chain.” As such, President Trump finds that the meat and poultry in the food supply chain meet the criteria to invoke the Defense Production Act. He therefore delegated to the Secretary of Agriculture the power to allocate materials, services and facilities in such manner, upon such conditions, and to such extent as is deemed necessary or appropriate to promote the national defense. In other words, the Secretary of Agriculture now has the authority to take all appropriate action to ensure that meat and poultry processors continue operations consistent with the recently issued interim guidelines from the CDC and OSHA.
This Executive Order comes as a result of reports that major processors have already shut down large plants due to exposure to the virus and that these plant closures may result in a reduction of the country's processing capacity by up to 80%. In addition, the administration stated that it will issue guidance that will provide additional liability protections for the facilities.
Labor and Employment Concerns
Despite the president’s order, some meat processing plant employees have expressed an intent not to return to work. So, what options do meat processing employers have if their workers refuse to work?
First, as the interim guidelines suggest, employers should follow guidance that has been issued for meat processing plants both by their states and by the CDC and the Occupational Safety and Health Administration (OSHA). Those guidelines will help protect employees from exposure to the virus and prepare employers to maintain critical operations with a reduced workforce. Additionally, there is pre-existing guidance on this issue from prior outbreaks. In response to the 2009 H1N1 Influenza outbreak, OSHA developed guidance addressing employee protections. These guidelines clarify when an employee may refuse to come to work or perform work due to a concern about their health and safety. These guidelines, while not binding, are instructive. Generally speaking, the older guidance states that an employer cannot discriminate against employees who:
- Refuse, in good faith, to expose themselves to a dangerous job condition; and
- Believe they have no reasonable alternative but to avoid the workplace.
Critical to this guidance is that the “reasonable person” standard applies: the employee’s fear must be one that a reasonable person in similar circumstances would conclude poses a real danger of death or serious injury. Further, there must be insufficient time to eliminate the danger through regular statutory enforcement channels. If these factors are met, an employer cannot discipline or discharge the employee. On the other hand, if these factors are not met, employees are expected to come to work and perform their job functions.
In addition, employers should check their state COVID-19 orders. Some states, such as Michigan, have ordered that employers may not terminate or discipline employees for staying home from work if they or someone close to them tests positive for COVID-19 or exhibits its symptoms.
Keep in mind that employers must still follow pre-existing OSHA and federal and state anti-discrimination laws. For example, taking an employee’s temperature has been considered a “medical examination” under the ADA and is generally prohibited. However, the EEOC issued guidance on March 21, 2020, temporarily relaxing this standard and permitting an employer during the COVID-19 pandemic to take the temperature of its employees in certain circumstances. Helpfully, the EEOC interim guidelines expressly permit meat processing facilities to check their employees' temperatures. However, other employers in the agricultural industry should check their state and any applicable CDC or OSHA guidance for their industry to determine if monitoring their employees' temperatures is required or, if not, warranted and/or permitted.
The administration is developing what it refers to as liability guidelines that processing plants can implement. Presumably, these liability guidelines will address how employers can protect themselves from liability in the event an employee or employees contract the virus. In the meantime, employers should follow our current guidance below, based on CDC and OSHA recommendations.
What to Do if an Employee Tests Positive for COVID-19
If an employee is diagnosed with COVID-19 in your workplace, employers should:
- Notify potentially exposed employees, clients, vendors or other guests that they have been in contact with an employee (without identifying them) who has tested positive for COVID-19;
- If required by your state or local government, notify local or state health authorities of the diagnosis;
- Protect the employee’s privacy and do not disclose the identity of the employee, or any health information gathered related to their condition;
- Keep any health care documentation and any documents gathered during the investigation in a private health folder in a secure location;
- Do not allow the diagnosed employee to return to work before they are symptom-free for 72 hours or cleared by a physician or tested negative;
- Require employees to monitor themselves for symptoms and stay home if sick;
- Send home any sick employees, whether or not they have been diagnosed with COVID-19;
- Clean and disinfect the workplace used by the diagnosed employee (the CDC has issued guidance on how to clean and disinfect your facility).
Visit Fox Rothschild’s COVID-19 Resource Center for more guidance on how to navigate employment decisions related to COVID-19 or contact us directly for assistance.