Susanne Kuehne, Decernis
Food Fraud Quick Bites

Don’t Primp My Shrimp

By Susanne Kuehne
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Susanne Kuehne, Decernis
Shrimp, Food fraud
Find records of fraud such as those discussed in this column and more in the Food Fraud Database.
Image credit: Susanne Kuehne

Authorities in Cambodia found a jelly-like substance injected into 11 tons of shrimp and other seafood imported possibly from Vietnam. Not only were the shrimp unfit for human consumption, import paperwork and permits were missing as well. The seafood was confiscated and destroyed at a landfill.

Resource

  1. Sotheary, P. (June 1, 2020). “11 tonnes of tainted seafood destroyed”. Khmer Times.
    Find records of fraud such as those discussed in this column and more in the Food Fraud Database.
Megan Nichols
FST Soapbox

COVID-19 Led Many Dairy Farmers to Dump Milk

By Megan Ray Nichols
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Megan Nichols

Much of the news coverage surrounding the COVID-19 pandemic mentions infection numbers and fatalities. Those are undoubtedly important for showing parts of the overall impact. However, it’s easy to overlook the ramifications felt by some professionals. One recent example concerns the instances of dairy farmers dumping milk.

Numerous Factors Contributing to the Problem

The pandemic drastically and dramatically disrupted life. Many of the associated changes affected milk producers, but perhaps not in the ways people expect. As schools closed and restaurants operated on delivery or a takeaway-only basis, the demand for milk typically consumed in the food and educational sector went down.

Consider, too, that the pandemic forced the closure of enterprises that did not necessarily serve large quantities of milk every day but still likely placed ongoing orders with suppliers. For example, a daycare center might give toddlers boxes of dairy beverages each day during snack time. Coffee shops often add milk to their lattes or set out bottles for people who want to put some in their coffee.

When coronavirus cases emerged in the United States, many people panicked and flocked to grocery stores for essentials. Milk is often one of the staples people buy before winter storms hit, and they wanted it to prepare for the pandemic, too. One Target store in New Jersey sold out of its entire stock of milk in only five minutes. Stores responded by imposing per-person limits on the product.

If the demand exists, what caused the milk surplus? Part of it boils down to a lack of space at milk processing plants. A related issue is that processors typically serve particular markets. One might cater to retail buyers while another primarily addresses needs in the food service sector. They lack the infrastructure to pivot and begin accepting milk orders from a new type of customer, particularly if the milk-based product is substantially different, like sour cream versus ice cream.

A First-Time Phenomenon

Farmers discarding milk is not unheard of, but it’s not something many producers do regularly. Andrew Griffith, a professor at the University of Tennessee, said that some farmers had to do it recently for the first time in careers spanning decades. He explained, “It’s not that [dumping] hasn’t occurred from farm to farm.” Adverse weather conditions can delay pickups, and unexpected supply spoilages might lead to too much milk.

“But we’re talking about a level of dumping that is not common at all. There [are] a lot of farmers that are experiencing dumping milk for the first time in their 30- or 40-year careers,” Griffith said in an article published on The Counter.

The highly perishable nature of milk poses another problem contributing to the milk surplus. That aspect hit dairy harder than some other types of agricultural goods. People could put grain into silos, but storage is more complicated for dairy products.

Any exposure to higher-than-recommended temperatures causes spoilage. The subsequent risk to consumers means farmers must throw it away. Cold storage facilities are essential for the dairy industry. Statistics from 2018 indicated an average of 10.67 cents per kilowatt-hour for energy consumption at commercial facilities. However, cold storage facilities operate 24/7, so their energy needs are often higher than those of other commercial buildings.

Cows, dairy, farms
The coronavirus is only one of the challenges likely to impact the dairy industry in the coming months and years. Dairy consumption has been trending down for years. (Pexels image)

The delicate nature of the product is another unfortunate aspect that may lead to dumping milk. If a processor has no room to accept the raw goods, there’s nowhere for them to go. In April The Wall Street Journal reported that in one week, producers threw out as much as 7% of the milk in the United States from that period. The same story highlighted how a specialty cheese factory saw sales of its chèvre and ricotta drop by 95% in one day.

Coping With Dairy Industry Fluctuations

The coronavirus is only one of the challenges likely to impact the dairy industry in the coming months and years. A Statista chart profiles the progressive decline of milk consumption in the United States. The average amount of milk per person in 1975 totaled 247 pounds. It plunged to 149 pounds by 2017.

There’s also the issue of people showing a growing preference for plant-based milk alternatives. One industry analysis tracked sales of traditional and oat milk during mid-March. Purchases for the first category rose by 32%, while oat milk sales soared by 476%. A potential reason for that huge increase in the latter category is that supermarkets sell shelf-stable milk alternatives. Those often stay in date for months when unopened.

People can get them in the refrigerated section, too, but they may have preferred not to as they cut down their shopping trips due to COVID-19. Consumers also noticed the increasing number of milk-like beverages made from hemp, hazelnuts and other options. If a person tries one and doesn’t like it, they may try a different option.

Despite those challenges, some dairy farmers anticipated favorable trends—at least before the coronavirus hit. Producers get paid per 100 pounds of milk. Katie Dotterer-Pyle, owner of Cow Comfort Inn Dairy, said 2013 was a particularly good year for the rates. Back then, farmers received about $30 for every 100 pounds, although the price has stayed at approximately $17 per 100 over the past two years.

When Might the Milk Surplus Ease?

This coverage emphasizes the lack of a quick fix for the dairy industry strain. As restaurants reopen, that change should help address the problem, but it won’t solve it entirely. Some enterprises refocused their efforts to better meet current demands. One Dallas-based plant that handles dairy products more than halved its output of cardboard milk cartons and increased production of whole and 2% milk for the retail sector. It is now back to normal manufacturing runs.

As mentioned earlier, though, many processors can’t make such changes. Dumping milk becomes a heart-wrenching practice for hard-working producers. Many tried to compensate by selling their least-profitable cows for slaughter or making feeding changes to reduce the animals’ production. Some private entities committed to purchasing milk from farms and getting it to food banks. Other analysts say the government should step in to help.

People in the farming community support each other with tips and reassurance, but most know they could be in for a long struggle. As supply chains recovered from the initial shock of COVID-19, most people stopped panic buying, and stores no longer set product limits. Things are moving in the right direction, but the impacts remain present.

A Complicated Issue

Many state leaders have let businesses reopen, and others are following. Any step toward a new kind of normal is a positive one that should gradually help the dairy sector. However, much of what the future holds remains unknown, mainly since this is a new type of coronavirus, and scientists still have plenty to learn about mitigating it.

Susanne Kuehne, Decernis
Food Fraud Quick Bites

Botanicals Yes, Glycerol No

By Susanne Kuehne
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Susanne Kuehne, Decernis
Food fraud, gin, ingredients, botanicals
Find records of fraud such as those discussed in this column and more in the Food Fraud Database. Image credit: Susanne Kuehne.

Gin usually consists of re-distillation or addition of a myriad of botanical ingredients to alcohol, but should certainly not contain glycerol and hydrogen peroxide like in this mislabeling case in Australia. This product poses a health risk for consumers, and is under recall for a full refund.

Resource

  1. Apollo Bay Distillery P/L recall (June 8, 2020) “Apollo Bay Distillery SS Casino Dry Gin”. Food Standards Australia New Zealand.
Dave Premo, Birko Corp.
FST Soapbox

How to Maintain Food Safety and Protect Your Brand During Construction

By Dave Premo
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Dave Premo, Birko Corp.

If your food processing facility needs an expansion or update, construction can be a disruptive event. Throughout the process, a variety of food safety hazards can be present, potentially putting your products at risk. While the contractors you work with are skilled at their trade, protecting your brand is ultimately your responsibility.

Construction, food safety
Developing a thorough plan can keep products, the facility and your employees safe during construction. Images courtesy of Birko.

Extra precautions are needed to minimize the food safety risks during construction, but by developing a thorough plan and following it diligently, you can keep your products, facility and employees safe.

Preparation: The Important First Steps for Safety

Having an established environmental plan before construction starts will make the construction process go smoothly and help maintain safety. If the plan your staff is following needs changes or improvements, make updates in advance of construction and be sure that your staff is up to speed before the project begins.

First, remove any equipment that can be moved from the construction zone and cover all electrical panels, open conduit and electrical outlets to minimize areas that might harbor dust or bacteria during construction.

Next, taking steps to separate the construction and production areas is crucial. Installing heavy gauge plastic sheeting or even temporary walls to isolate the construction area will help prevent cross-contamination. Any doors or wall openings on the temporary barriers should be sealed on both sides, and the gaps between the base of the barriers and the floor should be adequately sealed to keep the surrounding production areas safe. Do whatever is necessary to minimize organisms from traveling by air outside of the construction zone.

The HVAC and air handling system in the construction area should also be evaluated for cross-contamination potential. Be sure to close off or divert the airflow to prevent air movement from the construction zone to any production areas. In addition, make sure the system will be able to accommodate additional areas or space after construction is complete and make any upgrades if necessary. Thoroughly clean the HVAC system and filters before the construction process starts.

Similarly, evaluate any drains that are present in the construction zone for cross-contamination potential and take precautions to keep pathogens from passing from the construction area to the food production areas.

Make Contractors Part of Your Plan

While contractors might have years of experience in their trade, they don’t know your food safety plan. Schedule a formal food safety training session with the contractor and all members of the construction staff. Don’t allow anyone to work in the facility before completing the training. Determine which protective clothing contractors and their team will need, such as frocks, boot covers or hairnets, and provide a separate bag or place to store them during the construction process.

Designating a single entrance for contractors and construction staff will minimize confusion and avoid mistaken entries into prohibited areas. Educate them on the appropriate traffic flow as they arrive, enter the facility, and conduct their work. Their entrance should be separate from those used by office and food production employees. Have quat or alcohol hand and tool sanitizers stationed at the designated contractor entrance, and require them to sanitize any tools, materials or equipment before entering the facility. Emphasize that no mud or other debris should be tracked into the facility. Provide the necessary guidance and monitor the entrance area to prevent that from happening.

Shoe coverings, food safety, construction
Effectively communicate safety plan with all contractors involved.

Construction staff and in-house food production staff should be separated at all times. To prevent cross-contamination, there shouldn’t be any direct paths from the construction area to the production area. No material from the construction area should ever be brought into the food production area. Contractors and construction staff should also be prohibited from using the break rooms or restrooms that are used by the facility employees. Because they won’t have access to other areas, temporary hand wash sinks may be needed for construction employees to follow frequent hand washing and sanitizing procedures.

Best Practices for Sanitation During Construction

Before demolishing and removing any walls during the construction process, apply a foam disinfectant at 800–1000 ppm without rinsing. If any equipment needs to be moved, or if there will be new equipment brought into the area, clean and disinfect it with quat at 800–1000 ppm without rinsing.

Quat should also be applied heavily on the floors around the designated construction team entrances. Foam or spray contractors’ walkways and the construction area floor every four hours at 800–1000 ppm. Allow contractors, forklifts, dollies or other wheeled carts to regularly travel through the disinfectant to keep their feet and wheels sanitized as they move throughout the construction area.

If your construction project involves new equipment installation, discuss the sanitation requirements and restrictions with a sanitation chemical provider before purchasing this equipment to ensure you have the right chemistry on hand. Any new equipment should be cleaned and sanitized, as well as the area where it will be installed, before bringing the equipment into the area. Make sure all the surfaces of the new equipment are compatible with your current cleaning chemistry and that the installation follows proper food safety guidelines. If necessary, upgrade your food safety process to accommodate the new equipment.

Transitioning from Construction to Safe Food Production
Once the construction project is complete, remove all construction materials, tools, debris, plastic sheeting and temporary walls. Seal any holes that might have occurred in the floors, walls and ceilings where equipment was moved, and repair or replace epoxy or other floor coverings. Inspect any forklifts or man lifts used during the construction, and clean and sanitize them.

Clean the HVAC and air handling system and return it to either its pre-construction settings or an updated configuration based on what the new area requires.

Continue cleaning everything in the construction area, from ceiling to floor, including lights, walls, drains, refrigeration units and all equipment following SSOPs. Note that different cleaning products containing solvents may be needed for the initial cleaning to remove cutting oil, welding flux residues, greases, and other elements from the construction process. Be sure to have those cleaning products on hand before you get to this step to avoid delays of a thorough sanitation process. Where necessary, passivate any stainless steel equipment.

Finally, test the environment. Collect a special set of swabs and monitor the results. Apply post-rinse sanitizer and then begin food production. Implement an enhanced environmental monitoring program in all areas disrupted by the construction until the data shows a return to the baseline levels. Revise your facility SSOPs in light of any changes based on the new construction.

Achieving Seamless Productivity

Expansion can mean new capabilities for your business, but lax food safety processes during construction can jeopardize the new opportunities your expansion brings. By having a strong plan in place, following it diligently, educating contractors on your plan, monitoring activity, and using effective sanitizing chemistry, you will be able to expand while protecting your brand and avoiding food safety issues.

Maria Fontanazza, Food Safety Tech
Women in Food Safety

Help Us Shape Our Future Vision

By Maria Fontanazza, Melody Ge
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Maria Fontanazza, Food Safety Tech

Women in food safety are increasingly playing more critical roles in their organizations because of our objective decision-making, compassion, communication prowess and ability to collaborate. During this year’s Food Safety Consortium Virtual Series, we are pleased to join Food Safety Tech with a Women in Food Safety Day. It’s our day: We will discuss the challenges and opportunities that we encounter as a gender, especially during this uncertain era in the world. We will also address issues surrounding students who are devoting their research to improving food safety and quality. We welcome your contribution, support and ideas.

The 2020 Food Safety Consortium Virtual Series will take place every Thursday during the fall, beginning on September 10. If you are interested in presenting during the Women in Food Safety Day, we invite you to submit an abstract. Please note that the day in which the Women in Food Safety session will be held will be announced after we receive the abstracts.

When the Women in Food Safety group was first founded, the mission was to provide a community and networking platform for women in the industry to share their experiences and to seek advice from peers; more importantly, to help young female professionals and students to grow into future outstanding women leaders in the food safety industry.

To carry this mission, the group founder and committee are pleased to announce a mentorship program with below five focused areas:

  1. Diversity/culture: For women with a diverse background, focusing on their needs in different work culture
  2. Adventure Starts: For women in school, focusing on bridging the gap of moving from academia to industry; focus on starting their career, and create a pipeline for future food safety professionals
  3. The Future Leadership: For women at early career stage, focusing on step up to senior management, pipeline for future women leadership
  4. Working in Manufacturing: For women working in manufacturing sites, focusing on their needs in this specific work environment
  5. Work/Life balance: For women who are facing decision-makings, balancing work and life. The focus is on helping their needs when going through life’s exciting times and long leave from professional areas with minimal impact on work.

We welcome all industry professionals and fellows who are interested. We look forward to seeing you during the 2020 Food Safety Consortium Virtual Series, beginning on September 10. Together, we can make it. Join us to empower women and the food safety industry to leverage our unique leadership strength and skills.

Susanne Kuehne, Decernis
Food Fraud Quick Bites

Fraud Is the Spice Of Life

By Susanne Kuehne
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Susanne Kuehne, Decernis
Food Fraud, cumin
Find records of fraud such as those discussed in this column and more in the Food Fraud Database. Image credit: Susanne Kuehne.

The high value of spices makes them one of the most popular targets for intentional adulteration. Researchers in Brazil developed an efficient method for fraud detection: Near-infrared spectrometer (NIR) associated with chemometrics. This method is able to detect adulterants like corn flour and cassava in spice samples, revealing a high rate of adulteration, between 62% for commercial black pepper and 79% for cumin samples.

Resource

  1. Amanda Beatriz Sales de Lima et al. (January 2020). “Fast quantitative detection of black pepper and cumin adulterations by near-infrared spectroscopy and multivariate modeling”. Food Control. Vol. 107.
Retail Food Safety Forum

The New Normal for Grocery Store Health and Safety

By Todd Frantz
No Comments

Grocery stores have become some of the most important retail establishments over the past few months. They’ve kept people fed and provided access to essential supplies such as toilet paper, cleaning agents and over-the-counter medications. Grocery retailers have taken extraordinary steps to help protect the health and safety of their workers and customers during the worldwide pandemic, understanding that viruses can spread quickly with high customer traffic.

While many grocery stores made operational changes to stay open during this time, more adjustments are needed to help stem future infections. Guest occupancy limits, face-covering recommendations and single-directional aisles are here to stay, at least for the near term. Customers are likely to continue online shopping, which has its own set of challenges for food and delivery safety. It will be critical for retailers to obtain reliable information, specific to the store’s location and to follow local, state and federal mitigation guidelines. Trusted sources of such information include the National Institutes of Health (NIH), the CDC and the World Health Organization (WHO), plus state and local health departments.

Grocery retailers should also consider how and when employees interact with customers. Acrylic barriers at checkout lines are one method of physical control. Providing personal protective equipment and appropriate training on its use is another good method for maintaining infection control. As regulations relax, retailers need to evaluate what, if any, other changes should occur to keep safety at the forefront.

There are many other common sense practices retailers can adopt to help minimize the spread of any virus. Viral illnesses spread primarily between individuals, so the most important act of prevention is to keep employees healthy and safe. Hand washing is one of the most important steps we can take to help prevent the spread of illnesses. Most states require grocery stores to post restroom signs mandating that employees wash their hands, but these signs typically lack specific instructions. The CDC recommends cleaning hands in a specific way to avoid getting sick and spreading germs to others. The steps are the following:

  1. Dispense a paper towel, so it is ready before wetting hands
  2. Wet hands with warm (100°F/38°C) water
  3. Apply an appropriate amount of soap
  4. Rub hands vigorously together for 20 seconds
  5. Clean between the fingers, the backs of the hands and the fingertips
  6. Rinse hands under warm water to remove soap
  7. Dry hands with the paper towel
  8. Turn off faucet with a paper towel
  9. Use the paper towel to contact door surfaces to exit
  10. Throw away paper towel in a trash receptacle

Because grocery store workers touch food, increasing their handwashing frequency can help prevent the transmission of other types of illnesses beyond respiratory viruses. Employees should take care to wash their hands before donning gloves for any food preparation, after touching exposed skin, after handling soiled utensils and after engaging in any other activities that could soil hands.

Facility sanitization is another essential aspect in preventing the spread of illnesses. Grocery stores already have rigorous cleaning protocols that explain how to mix and use chemicals correctly. Additional instruction on how to apply cleaning agents to surface areas as well as visual reminders reminding workers how long a cleaning solution needs to remain before wiping with a cloth. To prevent the spread of infection, many stores have added more frequent cleaning for high-touch surfaces like door handles, touch screens and carts.

When approved sanitizers run low, however, some people turn to chlorine sanitizing agents like unscented bleach. Bleach can be a highly effective sanitizer, but it can also be potentially hazardous when misused. Specifically, when mixed with other cleaning products that contain ammonia, it creates a highly toxic chlorine gas. The cleaning staff needs proper training on how to mix and use cleaning solutions, use the appropriate personal protective equipment (PPE), such as wearing gloves or a protective outer garment, and to provide appropriate ventilation in rooms where sanitizers are mixed and stored.

Grocery stores have been at the forefront of the pandemic response for some time and they will be the first to adopt “new normal” procedures. Specific guidelines around health and safety evolve, but the fundamentals of health and safety stay the same. Stores that strive to maintain high standards around cleanliness and sanitation are likely to be better positioned for the inevitable next time.

Susanne Kuehne, Decernis
Food Fraud Quick Bites

Milking The Business

By Susanne Kuehne
No Comments
Susanne Kuehne, Decernis
Cow, milk, adulteration
Find records of fraud such as those discussed in this column and more in the Food Fraud Database. Image credit: Susanne Kuehne.

Milk has enjoyed increasing popularity in China, however, the milk supply chain is still vulnerable to fraud throughout the country. Milk can be adulterated in variety of ways, from dilution with water to the addition of carbohydrate- or nitrogen-based and protein-rich adulterants as well as a variety of unapproved (sometimes hazardous) additives. This study used Fourier transform-infrared spectroscopy to determine fraud in 52 ultra-high-temperature commercial milk samples. Twenty-three percent of the samples turned out to be adulterated and some of the samples were even flagged for multiple issues.

Resource

  1. Yuzheng Y., et.al. (June 1, 2020) “Prevalence of Milk Fraud in the Chinese Market and its Relationship with Fraud Vulnerabilities in the Chain.” MDPI.
Melanie Neumann, Neumann Risk Services
FST Soapbox

The COVID-19 Record Retention Conundrum

By Melanie J. Neumann
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Melanie Neumann, Neumann Risk Services

During this global pandemic, the U.S. Equal Employment Opportunity Commission (EEOC) green-lighted employers to take temperatures checks of employees and to administer COVID-19 testing for workers prior to returning to work without running afoul of the Americans with Disabilities Act (ADA). This appears straight-forward upon first reading, however, several practical uncertainties about implementation, including confidentiality, discrimination, and how long to retain records remain.

As such, deciding whether to take temperatures and/or require COVID- 19 testing as a return to work strategy is more complicated than it may seem.

Temperature Screening & Testing Considerations

Temperature screening and COVID-19 mandatory testing are both permitted medical examinations during this pandemic but are otherwise prohibited during non-pandemic times. Before adopting, employers should understand the requirements impacting the records these tests generate, including the need to protect confidentiality and to retain records for longer than one may expect.

Temperature Screens
Under normal circumstances, temperature checks are considered a prohibited medical examination under the ADA. During a pandemic, however, the Equal Employment Opportunity Commission (“EEOC”) makes an exception, allowing employers to take temperatures/use temperature checks and exclude employees from the workplace should temperatures exceed public health recommendations. If employers keep records of temperatures, they must retain these records per applicable regulations. This is important because an “employee medical record” would likely result if employers take employees’ temperatures or collect temperature related records. As we will see below, there are regulatory requirements that require how we conduct these screens, and where and for how long we must retain them.

COVID-19 Testing

COVID-19 testing also constitutes a permissible medical exam under ADA during this pandemic, per the EEOC-issued guidance regarding mandatory employee testing.

For medical examinations to be allowed under the ADA, the test must be “job related and consistent with business necessity,” and employers must treat information as a confidential medical exam.

The initial guidance acknowledged that the spread of COVID-19 is a “direct threat,” hence meeting the requirement that a medical exam be “job related and consistent with business necessity” and that temperature screenings were therefore appropriate. For the same reasons, in updated guidance released at the end of April 2020, the EEOC expanded that guidance to clarify that employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus for the same reasons.

When reading the EEOC’s language closely, the permission granted by EEOC appears to be for diagnostic tests, as the guidance states testing is to determine if employees have the virus before allowing employees to return to work. It is unclear whether antibody testing is included in the above analysis because antibody tests do not determine if someone is currently infected.

In addition, there are other considerations employers should assess before adopting a testing protocol. EEOC reminds employers that they must review the accuracy and efficacy of the selected test per FDA and CDC recommendations. Moreover, pragmatic considerations, such as how to maintain social distancing and employee privacy, determining who will perform the testing and at what the frequency, not to mention evaluating whether there is enough test capacity to perform employee-wide testing at a meaningful cadence should be evaluated.

Records Management & Retention

There is another often over-looked question: What do employers do with documented test records? This question applies whether the employer conducts the test, requires tests from employee’s healthcare providers to be off work to self-isolate, or as a return to work requirement.

It was clearly outlined above that temperature records and COVID-19 test records constitute employee medical records. Why is this important? Because there are specific requirements relating to employee medical records, including what appears to be a surprisingly long retention requirement.

Where to retain: An employer should store all medical information related to COVID-19 in existing medical files, separate from the employee’s personnel file, per the ADA, limiting access to this employee confidential information. This includes an employee’s statement that he has COVID-19 or suspects he/she has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

How long to retain: That is the 30-year question. The Department of Labor’s Occupational Safety and Health Agency (OSHA) provides retention requirements for employee medical records in certain situations for a period of an employee’s employment plus 30 years.

While COVID-19 test results and temperature screening documentation are deemed medical examinations under the applicable regulations, are the documented results deemed medical records? We turn to applicable EEOC OSHA regulations in section 1910.1020 for answers.

OSHA Requirements

The OSHA general duty clause, section 5(a)(1) requires employers to furnish to each of its employees a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. COVID-19 appears to rise to this threat level. But is that fact alone dispositive to falling under the applicable OSHA retention requirements?

OSHA regulation section 1910.1020 requires employers to retain employee exposure or employee medical records relating to employee exposure to certain hazards. This section applies to each general industry, maritime and construction employer who makes, maintains, contracts for, or has access to employee exposure or medical records, or analyses thereof, pertaining to employees exposed to toxic substances or harmful physical agents (Emphasis added).

Is SARS-CoV-2, the virus that causes COVID-19, considered a “toxic substance or harmful physical agent?”

Most would quickly assume the answer is ‘yes’. But it may not be as clear as the black and white letter of the law would hope. Let’s review some key definitions in the applicable regulation to help shed more light on this question.

What are Toxic Substances or Harmful Physical Agents?

The record retention requirement pivots on the last phrase of 1910.1020, that is “…pertaining to employees exposed to toxic substances or harmful physical agents.”

Toxic substances or harmful physical agents are defined as follows;

  • 1910.1020(c)(13) “Toxic substance or harmful physical agent” means any chemical substance, biological agent (bacteria, virus, fungus, etc.), or physical stress (noise, heat, cold, vibration, repetitive motion, ionizing and non-ionizing radiation, hypo – or hyperbaric pressure, etc.) which:
    • 1910.1020(c)(13)(i) is listed in the latest printed edition of the National Institute for Occupational Safety and Health (NIOSH) Registry of Toxic Effects of Chemical Substances (RTECS) which is incorporated by reference as specified in Sec. 1910.6; or
    • 1910.1020(c)(13)(ii) has yielded positive evidence of an acute or chronic health hazard in testing conducted by, or known to, the employer; or
    • 1910.1020(c)(13)(iii) is the subject of a material safety data sheet kept by or known to the employer indicating that the material may pose a hazard to human health. (Emphasis added by author).

The use of “or” clarifies that only one of the criteria need to be met. Based on the above, while subsections (c)(13)(i) and (c)(13)(iii) do not appear relevant, subsection (c)(13)(ii) appears to apply as SARS-CoV-2 has shown to result in acute health hazard, resulting in the disease COVID-19. Whether there is a chronic health impact remains to be seen given the novelty of this virus. That said, acute health impact appears sufficient to determine SARS-CoV-2 as a “toxic substance or harmful physical agent” for purposes of this analysis.

This alone doesn’t automatically place an employer in a 30-plus year requirement to retain employee medical records. What constitutes an “employee medical record” and “employee exposure record” for purposes of this regulation must be further understood before determining appropriate retention.

What are Employee Medical Records and Employee Exposure Records?

“Employee medical records” are defined in section 1910.1020(c)(6), and means a record concerning the health status of an employee that is made or maintained by a physician, nurse or other healthcare personnel, or technician, including: Medical and employment questionnaires or histories, the results of medical exams, lab test results, medical opinions/doctor’s recommendations, first aid records, employee medical complaints, and descriptions of treatment or prescriptions.

Section 1910.1020(d)(1)(i) goes on to specifically prescribes a minimum of a 30-plus year retention period as follows: “The medical record for each employee shall be preserved and maintained for at least the duration of employment plus thirty (30) years.”

“Employee exposure records,” are defined in subsection 1910.1020(d)(1)(ii), as: “Each employee exposure record shall be preserved and maintained for at least thirty (30) years,…”. Some exceptions are listed in this subsection for records relating to health insurance claims, first aid records and records relating to employees working less than one year.

What Constitutes Employee Exposure?

One must also look at what “employee exposure” means in light of this regulatory requirement to determine applicability of the 30-plus year retention.

1910.1020(c)(8) defines “exposure” or “exposed” to mean that an employee is subjected to a toxic substance or harmful physical agent in the course of employment through any route of entry (inhalation, ingestion, skin contact or absorption, etc.), and includes past exposure and potential (e.g., accidental or possible) exposure, but does not include situations where the employer can demonstrate that the toxic substance or harmful physical agent is not used, handled, stored, generated, or present in the workplace in any manner different from typical non-occupational situations.

More Questions than Answers

This analysis may leave more questions than answers, as several questions remain after looking closely at the regulatory requirements. For example:

  • How can an employee prove that exposure to SARS-CoV-2 occurred in the course of employment?
  • Does the employee even have to? The regulation clearly states that it is the employer’s burden, in that the “employer demonstrate that a toxic substance or harmful physical agent was not present in the workplace in any manner different from typical, non-occupational situations”.
  • How can an “employer demonstrate” that the harmful physical agent was not present? In other words, how can employers demonstrate that its employees are at any greater exposure by coming to work than they are in their every day lives, like going to the grocery store?
  • How do employers prove absence? Is it even possible given several people are asymptomatic?
  • Does this analysis differ by food industry sectors? What about meat and poultry processors with known high rates of infection in their workplace? Would the analysis differ?

Conclusion

Short of additional guidance issued by Department of Labor’s OSHA, ultimately this will likely be decided by the courts when the first lawsuit on this topic arises, known as decision via case law. What do employers do in the interim while these shades of gray are not yet adjudicated? It is recommended to err on the side of caution. Find ways to adjust your company’s record retention procedures and systems to be able to accurately retain these records for the duration of your employee’s employment plus 30 years.

Resources

  1. OSHA Laws & Regulations. OSH Act of 1970. SEC 5. Duties. Retrieved from https://www.osha.gov/laws-regs/oshact/section5-duties
  2. OSHA Standards. Part 1910, Standard 1910.1020. Retrieved from https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.1020
  3. OSHA. Access to Medical and Exposure Records. (2001). U.S. Department of Labor, OSHA. Retrieved from https://www.osha.gov/Publications/pub3110text.html
  4.  U.S. Equal Employment Opportunity Commission. “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”. (Updated May 7, 2020). Retrieved from https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. See A. 6 and B.1.
Bob Bentley, Crisp
FST Soapbox

Predictions: Planning for Increased Demand with Limited Supply

By Bob Bentley
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Bob Bentley, Crisp

We are seeing the beginning of a limited supply of certain products as containment of the COVID-19 pandemic keeps manufacturers, processing plants, and other suppliers in global stasis. But what does that mean for these manufacturers and other members of the supply chain? It means continued planning of master resources such as demand management, sales and operations planning and production scheduling, but with a greater focus on efficiency.

This process of master resource planning results in a detailed blueprint for manufacturing products to meet anticipated demand, accounting for various constraints such as limited supply of raw materials and purchase parts.

So what should manufacturers do if they run into serious shortages of raw materials or purchase parts? What can retailers do to cover operating expenses if they don’t have enough products to sell? We’ll take a look at these anticipated complications and possible methods for solving them.

Limited Supply

The current COVID-19 crisis has led to mandatory business closures that have already caused a shortage of supply. So far, we’ve gotten by with inventories that had already been sitting in various places up and down supply chains prior to the shutdowns, not just on warehouse and retail store shelves. Once all inventories within supply chains are depleted, we will start to notice more stockouts.

Some businesses can endure long-term production cessations without stockouts. For example, manufacturers in critical industries such as pharmaceuticals have a policy of stockpiling inventory in case of unforeseen events. Most businesses, however, cannot afford to miss months of production time because the lean manufacturing principles they adhere to include keeping minimal inventory.

For instance, automobile manufacturers and retailers do not hold excess inventory due to the expected annual product line changes from the previous year’s models, which are typically sold at a large profit reduction at the turn of the year. Clothing and other fashion-related businesses also keep inventory minimal due to a yearly change in styles.

Another source of upcoming shortages will be the sell-off of supplier facilities due to the downturn in revenue caused by emergency closures. Food is a particularly interesting case. Farmers are reconstructing the way their supply chains work to better serve their new target consumers—grocery retail. Some farmers may run into issues with transporting livestock or may need to repurpose crops that are nearing their harvest. Many of those that are pushing to endure and come out of the pandemic disruption with minimal casualties are starting to get creative by creating small farmers’ markets (pop-ups) or marketing directly to the consumer via direct subscription boxes.

It will take some time to re-establish farms, manufacturing plants, and other suppliers who were hit hardest during the months without revenue. However, refocusing on demand planning and forecasting could aid in spurring a regeneration of these industries.

Demand Management

Demand management is the first of three steps taken during the master resources planning process. Demand management includes demand forecasting, distribution channel planning and customer demand management.

Both suppliers and retailers need to know what demand they can expect, especially during uncertain times. After COVID-19, consumer demand will be high, supplies will be limited, and accurate demand forecasting will be especially important to getting businesses back on their feet.

Inaccurate forecasting will cause waste when businesses overestimate future demand for items that have a short shelf life. For instance, a grocery store that overestimates how much produce they will be able to sell within a certain time frame will end up throwing some of that produce away due to spoilage.

Consumer behavior during a crisis can complicate demand forecasting, though. In an earlier phase of the COVID-19 pandemic, worried customers over-purchased toilet paper and paper towels. This caused a shortage for everyone else, and the demand for those items was much higher than anticipated/forecasted. More recently, the same buyers bought up meat when they heard about the disruption in the food supply chain, and they expected the prices for meat to go up. Demand spikes like these cause lost sales for stores that don’t anticipate them.

Demand forecasting will remain tricky in the short-term for both suppliers and retailers whenever a retailer re-opens to the public with the imposed 25% capacity constraint. Overhead expenses will likely remain relatively the same, but 25% of the normal revenue may not cover expenses. Whether a full 25% of a retailer’s former customer base would return during a pandemic is also an unknown factor.

Companies will see high demand when the world opens their doors for business. The most efficient way for companies to plan during these times is by utilizing high-performance, demand forecasting software that will offer the best information available to deal with volatile demands, given the various known and predicted factors.

Sales and Operations Planning

After demand management is performed, manufacturers go through a sales and operations planning process that integrates sourcing, manufacturing, sales, marketing and financial plans, and resource planning. This process results in the creation of an approved production plan (at the product family level), purchase plan, sales plan and backlog plan that satisfies the anticipated level of demand within supply constraints.

In the early days following the end of the pandemic, some manufacturers won’t have the initial supply to meet the high demand for their goods. Some may find contingencies for creating their goods and products, while others may run into supplier issues when it comes to recreating their products and goods post-closure.

Getting manufacturers back up to speed will depend on building up the supplies of raw materials and purchase parts. Sometimes out-of-the-box solutions such as part designs can eliminate the need for some unavailable purchase parts and dependency on some suppliers. Additionally, accurate demand planning information will enable manufacturers to accommodate their retailer customers as much as possible without overpromising incoming goods.

Master Scheduling

In the master scheduling phase, the production and purchasing plans are taken from the family level into a specific product level. This process involves a computer repeatedly simulating production and purchasing as planned during the S & OP step until optimal bills of materials are created. This process includes testing of the plans against constraints of critical resources (rough-cut capacity planning) until a master production schedule is derived.

Fortunately for the retailers, manufacturers who have done accurate demand planning and have taken their production plans through the master scheduling stage will know the maximum number of goods they can ensure without overreaching.

Conclusion

The current COVID-19 pandemic required many business closures to help contain the spread of the virus. As a result, many consumer goods are in limited supply. When the crisis ends, the demand may very well overtake the supply. Businesses will need to practice patience while supplies build back up. Thinking outside the box, using accurate demand forecasting, preventing waste, and executing good demand planning will be crucial steps in reinstating a synergistic supply chain model.