Tag Archives: CDC

Recall

More than 500 Reported Ill, Red Onions Named in Salmonella Outbreak Investigation

By Food Safety Tech Staff
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Recall

–UPDATE: August 10, 2020 —

Last week USDA’s FSIS issued a public health alert concerning ready-to-eat meat and poultry products that contain the onions recalled by Thomson International, Inc. (see below news brief). The products have been distributed by retail establishments that include Walmart, Kroger, HEB and Amana Meat Shop & Smokehouse. The USDA has made available the full list of products subject to the public health alert.

–END UPDATE–

A multistate outbreak of Salmonella Newport has been traced back to red onions from Thomson International, Inc. a company based in Bakersfield, CA. As of July 31, 396 illnesses were reported in the United States, with 59 hospitalized across 34 states. In Canada, 120 cases have been confirmed, according to the Public Health Agency of Canada.

As a result, Thomson International is recalling all varieties of its onions (red, white, yellow and sweet) that “could have come in contact with potentially contaminated red onions”, according to an FDA alert.

The FDA, CDC, state and local agencies, as well as the Public Health Agency of Canada are investigating the outbreak. FDA recommends that consumers, restaurants and retailers refrain from eating, selling or serving any onions from Thomson International. The agency also states that any surfaces, containers or storage areas that may have come into contact with these products be cleaned and sanitized.

FST Soapbox

FDA Announces Inspections Will Resume…Sort Of

By Trish Wester
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FDA Commissioner Stephen Hahn, M.D. recently announced that food safety inspections will resume in July, but inspectors will be given leeway to accommodate the coronavirus pandemic. Inspections will be prearranged by appointments. The agency suspended routine inspections in late March as a result of the pandemic response, which closed down much of the country.

USDA/FSIS has continued to provide inspection services for eggs, meat and poultry throughout the COVID-19 outbreak, with a significant number of establishments involved in outbreak clusters and periodic shutdowns.

The “White House Guidelines for Opening Up America Again” calls for the FDA to send out investigators for on-site inspections by the week of July 20, using the COVID-19 Advisory Rating system, which utilizes state and national data about infection rates to determine the regions where enforcement can resume.

In a July 10 FDA statement Hahn noted, “resuming prioritized domestic inspections will depend on the data about the virus’ trajectory in a given state and locality, and the rules and guidelines that are put in place by state and local governments.”

One of the most significant modifications for domestic inspections in the announcement is that they will be pre-announced to FDA-regulated businesses. “This will help assure the safety of the investigator and the firm’s employees, providing the safest possible environment to accomplish our regulatory activities, while also ensuring the appropriate staff is on-site to assist FDA staff with inspection activities,” Hahn said. Previously, most inspections were unannounced.

It’s not entirely clear how FDA will use the White House guidelines to determine where they can schedule inspections. There is mention of a prioritization mechanism that will identify high-risk operations, but that has traditionally been part of FDA’s approach to inspections.

The CDC published phased guidelines for states to follow in reopening, which are referred to in the announcement. The guidelines document outlines the gating criteria for states, but published versions do not mention inspection requirements. Many states began reopening without meeting all of the gateway criteria for Phase 1, and continued to accelerate reopening activities in a way that makes it unclear which phase criteria they may have actually met when compared to the phase under which they claim to be operating.

Further complicating the safety issue is the recent rising number of COVID-19 cases that is causing some states to pause or rollback reopening activities. Since publishing the announcement, several states have emerged as new COVID-19 hot spots, including Texas, Arizona and Florida; In addition, Florida has surpassed New York in total cases. California, another food producing state heavily affected by the pandemic, is seeing a significant increase in cases and is considering issuing new shelter-in-place orders. It was recently reported that CDC has identified 21 states as “Red Zones”, with at least 11 states on the verge of surging cases.

In other words, with the virus on the rise, there may not be a significant number of inspections actually performed, regardless of whether or not inspections have technically resumed, simply because there just isn’t a safe way to send inspectors out.

The FDA has also published the “New Era of Smarter Food Safety Blueprint”, which includes ways the agency could use technology to support compliance activities. There may be an opportunity for the FDA to implement new tools such as remote verification in lieu of onsite inspections, but that remains to be seen. Among such tools, remote audit pilots were recently completed and those results will be available for public presentation at the end of August.

In the short term, should FDA determine you are an inspection candidate, you will contacted in advance to schedule a day and time.

Food Safety Consortium

2020 Food Safety Consortium Virtual Conference Series Agenda Announced

By Food Safety Tech Staff
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Food Safety Consortium

The agenda for the 2020 Food Safety Consortium Virtual Conference Series has been released. The announcement about the annual Food Safety Consortium being converted to a virtual series due to the COVID-19 pandemic was made last month. Due to a demand to provide attendees with even more content, the event has been extended a full month and is running into December. Food Safety Tech is the media sponsor.

The event will begin every Thursday at 12 pm ET, beginning on September 3 and continue through December 17. Each week will feature three educational presentations, two Tech Talks, and a panel discussion. Weekly episodes include food defense, food labs, pest management, sanitation, food fraud, listeria detection, mitigation & control, professional development, women in food safety, supply chain management, COVID-19’s impact and food safety culture.

Frank Yiannas, FDA deputy commissioner for food policy and response, will serve as the keynote speaker on Thursday, October 1 at 12 pm ET.

“Human connection is so important for events, and we know we’re not the only game in town. That’s why we’ve invested in a Conference Virtual Platform that can facilitate discussions, discovery, and connection that can continue whether our event is offline or online—and not end with the live streaming,” says Rick Biros, president of Innovative Publishing and director of the Food Safety Consortium. “Simply, the experience other food safety conferences are offering is not conducive to learning, staying engaged or take into consideration that you have a job to do during that week. This is why we have designed the Consortium’s program with short, manageable episodes that are highly educational.”

Registration for the 2020 Food Safety Consortium Virtual Conference Series is open. Keeping in mind that registrants may not be able to attend every week due to scheduling conflicts, there is an option to watch the each session on demand.

Tech Talk Sponsorship

Companies that are interested in sponsoring a 10-minute technical presentation during the series can also submit their abstract through the portal. For pricing information, contact IPC Sales Director RJ Palermo.

Innovative Publishing has also converted the Cannabis Quality Conference to a virtual event. More information is available at Cannabis Industry Journal.

About Food Safety Tech

Food Safety Tech publishes news, technology, trends, regulations, and expert opinions on food safety, food quality, food business and food sustainability. We also offer educational, career advancement and networking opportunities to the global food industry. This information exchange is facilitated through ePublishing, digital and live events.

About the Food Safety Consortium Conference and Expo (The live event)

Food companies are concerned about protecting their customers, their brands and their own company’s financial bottom line. The term “Food Protection” requires a company-wide culture that incorporates food safety, food integrity and food defense into the company’s Food Protection strategy.

The Food Safety Consortium is an educational and networking event for Food Protection that has food safety, food integrity and food defense as the foundation of the educational content of the program. With a unique focus on science, technology and compliance, the “Consortium” enables attendees to engage in conversations that are critical for advancing careers and organizations alike. Delegates visit with exhibitors to learn about cutting-edge solutions, explore three high-level educational tracks for learning valuable industry trends, and network with industry executives to find solutions to improve quality, efficiency and cost effectiveness in the evolving food industry.

Alex Kinne, Thermo Fisher Scientific
In the Food Lab

Ensuring Food Safety in Meat Processing Through Foreign Object Detection

By Alex Kinne
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Alex Kinne, Thermo Fisher Scientific

The USDA estimates that foodborne illnesses cost more than $15.6 billion each year. However, biological contamination isn’t the only risk to the safety and quality of food. Food safety can also be compromised by foreign objects at virtually any stage in the production process, from contaminants in raw materials to metal shavings from the wear of equipment on the line, and even from human error. While the risk of foreign object contamination may seem easy to avoid, in 2019 alone the USDA reported 34 food recalls, impacting 17 million pounds of food due to ‘extraneous material’ which can include metal, plastic and even glass.

When FSMA went into effect, the focus shifted to preventing food safety problems, necessitating that food processors implement preventive controls to shift the focus from recovery and quarantine to proactive risk mitigation. Food producers developed Hazard Analysis and Critical Control Point (HACCP) plans focused on identifying potential areas of risk and placement of appropriate inspection equipment at these key locations within the processing line.

Metal detection is the most common detection technology used to find ferrous, non-ferrous, and stainless steel foreign objects in food. In order to increase levels of food safety and better protect brand reputation, food processors need detection technologies that can find increasingly smaller metal foreign objects. Leading retailers are echoing that need and more often stipulate specific detection performance in their codes of practice, which processors must meet in order to sell them product.

As food processors face increased consumer demand and continued price-per-unit pressures, they must meet the challenges of greater throughput demands while concurrently driving out waste to ensure maximum operational efficiencies.

Challenges Inherent in Meat Metal Detection

While some food products are easier to inspect, such as dry, inert products like pasta or grains, metal foreign object detection in meat is particularly challenging. This is due to the high moisture and salt content common in ready-to-eat, frozen and processed, often spicy, meat products that have high “product effect.” Bloody whole muscle cuts can also create high product effect.

The conductive properties of meat can mimic a foreign object and cause metal detectors to incorrectly signal the presence of a physical contaminant even when it is nonexistent. Food metal detectors must be intelligent enough to ignore these signals and recognize them as product effect to avoid false rejection. Otherwise, they can signal metal when it is not present, thus rejecting good product and thereby increasing costs through scrap or re-work.

Equipping for Success

When evaluating metal detection technologies, food processors should request a product test, which allows the processor to see how various options perform for their application. The gold standard is for the food processor to send in samples of their product and provide information about the processing environment so that the companies under consideration can as closely as possible simulate the manufacturing environment. These tests are typically provided at no charge, but care should be taken upfront to fully understand the comprehensiveness of the testing methodologies and reporting.

Among the options to explore are new technologies such as multiscan metal detection, which enables meat processors to achieve a new level of food safety and quality. This technology utilizes five user-adjustable frequencies at once, essentially doing the work of five metal detectors back-to-back in the production line and yielding the highest probability of detecting metal foreign objects in food. When running, multiscan technology allows inspectors to view all the selected frequencies in real time and pull up a report of the last 20 rejects to see what caused them, allowing them to quickly make appropriate adjustments to the production line.

Such innovations are designed for ease of use and to meet even the most rigorous retailer codes of practice. Brands, their retail and wholesale customers, and consumers all benefit from carefully considered, application-specific, food safety inspection.

Ensuring Safety

The food processing industry is necessarily highly regulated. Implementing the right food safety program needs to be a top priority to ensure consumer safety and brand protection. Innovative new approaches address these safety concerns for regulatory requirements and at the same time are designed to support increased productivity and operational efficiency.

Hyvee Garden Salad

FDA, CDC Investigating Multistate Cyclospora Outbreak Involving Bagged Salads

By Food Safety Tech Staff
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Hyvee Garden Salad

An outbreak of Cyclospora infections is being linked to bagged, garden salads sold at ALDI, Hy-Vee and Jewel-Osco grocery stores in six states across the Midwest (Iowa, Illinois, Kansas, Minnesota, Missouri and Nebraska). The FDA, CDC and other state and local agencies are investigating the multistate outbreak, which has sickened 76 people and resulted in 16 hospitalizations. No deaths have been reported.

The FDA and CDC are recommending that consumers should not eat the products, and restaurants and retailers should not serve or sell the products, which fall under the following brand names: ALDI Little Salad Bar Brand Garden Salad from ALDI grocery stores, Hy-Vee Brand Garden Salad from Hy-Vee grocery stores, and Signature Farms Brand Garden Salad from Jewel-Osco. The illness onset date range is currently May 11–June 14, 2020.

Mice, pests

Pests Don’t Rest During a Pandemic

By Food Safety Tech Staff
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Mice, pests

The COVID-19 pandemic has forced the closure of hundreds of restaurants, food processors and other businesses nationwide. As weeks went on, increased rodent activity plagued many businesses, some of which has been attributed to a change in food sources and availability—so much so that the CDC released a warning about rodent control in restaurants and other commercial businesses that have either been closed or have had limited service during the pandemic. “Environmental health and rodent control programs may see an increase in service requests related to rodents and reports of unusual or aggressive rodent behavior,” the CDC stated last month.

As the American economy reopens, many food establishments and facilities must consider three key points that will affect pest management during this time:

  • Pest pressure continues. Rodents are on a never-ending search for food, water and harborage.
  • Change in business patterns. Different inbound and outbound shipments; changes in employee shifts and production schedules; new supply chain partners.
  • Service provider access. Access to facilities and secure areas; changes in facility structure, equipment and storage

Factoring the many changes that COVID-19 has prompted, the role of pest management is more important than ever. We invite you to join us for Food Safety Tech’s upcoming complimentary virtual conference, “Integrated Pest Management: Protect Food Safety and Prevent the Spread of Pathogens”, on June 30. Our Technical Service Lead, Joe Barile, will discuss pest management and risk mitigation in the COVID-19 world; he will be followed by Orkin’s VP of Quality Assurance and Technical Services, Judy Black, on the key components to successful IPM and pest management programs, and Angela Anandappa, Ph.D. of the Alliance for Advanced Sanitation on how an effective sanitation program can protect against pest and food contamination. Register now.

Retail Food Safety Forum

The New Normal for Grocery Store Health and Safety

By Todd Frantz
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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.

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.
Alert

Meat Shortage Threat, Facility Employees Can Still Work After Potential COVID-19 Exposure

By Maria Fontanazza
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Alert

–UPDATE April 29, 2020— Yesterday President Trump signed an executive order to keep meat and poultry processing facilities operational during the coronavirus national emergency. U.S. Secretary of Agriculture Sonny Perdue said the following in a USDA statement, “Maintaining the health and safety of these heroic employees in order to ensure that these critical facilities can continue operating is paramount. I also want to thank the companies who are doing their best to keep their workforce safe as well as keeping our food supply sustained. USDA will continue to work with its partners across the federal government to ensure employee safety to maintain this essential industry.”

–END UPDATE–

As critical infrastructure workers, employees at meat and poultry processing facilities have stayed on the job during the coronavirus crisis. Hundreds have fallen ill and many have died as a result; at least 100 USDA inspectors have tested positive for COVID-19 and at least one inspector has died, according to reports. Production facilities across the country have shut down over the past month, and the threat of a meat shortage is very close to becoming a reality, warns Tyson Foods Chairman John Tyson. “In small communities around the country where we employ over 100,000 hard-working men and women, we’re being forced to shutter our doors. This means one thing—the food supply chain is vulnerable. As pork, beef and chicken plants are being forced to close, even for short periods of time, millions of pounds of meat will disappear from the supply chain,” Tyson stated in a company blog. “As a result, there will be limited supply of our products available in grocery stores until we are able to reopen our facilities that are currently closed.”

Hog and cattle producers are altering rations to slow the growth of livestock. In Iowa, the National Guard was activated to conduct testing and contact tracing of plant workers from Tyson Foods and National Beef Packing Company.

Meat production is on a 25% decline and by the end of this week, America could be entering a meat shortage, according to Dennis Smith, an Archer Financial Services commodity broker and livestock analyst.

Access the COVID-19 Resource CenterProtecting Essential Employees

“To ensure continuity of operations of essential functions, CDC advises that critical infrastructure workers may be permitted to continue work following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented to protect them and the community,” the CDC’s Critical Infrastructure Guidance states. The agency also notes that screening workers for COVID-19 symptoms is “an optional strategy”.

Meat processing workers are not exposed to COVID-19 through product handling; they can be exposed via close contact with other employees in a facility. The CDC and OSHA have released interim guidance for meat and poultry processing workers and employers that details how communal work environments should be laid out and how employers should be promoting social distancing. Engineering controls include the following:

  • Reconfiguration of workstations to allow employees to be six feet apart, if possible
  • Establishing physical barriers (i.e., plexiglass or strip curtains) to separate workers
  • Working with an HVAC engineer to establish proper ventilation that limits potential exposure to coronavirus; removal of any pedestal or personal fans
  • Setting up handwashing stations or hand sanitizer (60% alcohol) stations
  • Reconfiguring break rooms and other communal areas to promote social distancing

The CDC also recommends that workers wear cloth face coverings that fit over the mouth and nose.

For workers who have experienced COVID-19 symptoms and have self-isolated at home, the CDC advises they do not return to work until they meet specific criteria.

Read the CDC and OSHA interim guidance.