Tag Archives: employee safety

Nick Warrick

Standards and Trends for Protective Apparel in the Food Industry

By Nick Warrick
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Nick Warrick

Employees who work in the food manufacturing and processing industries need proper personal protective equipment (PPE). As with other industries, PPE is used to protect employees against injuries, but for the food industry, it is also designed and used to reduce the risk of food contamination.

When selecting PPE for your workers, you need to consider specific contamination and safety risks, such as risk of abrasions, punctures, cuts, flash fires, and cryogenic hazards, based on the employee’s specific roles and duties.

The proximity to food requires prioritization of high standards of hygiene for all employees, as well as protection against individual risks based on setting. For instance, those working in commercial kitchens with high temperatures need loose and light apparel. On the other hand, those working in cold rooms need heavier outfits.

Factors to Consider When Selecting PPE in the Food Industry

Following are key factors to consider as you investigate apparel to keep your company’s employees safe and comfortable.

Effectiveness and Cost. Consider the quality standards you need to meet and the tear resistance of the material. Choosing one-time use or disposable apparel might seem expensive, but laundering of reusable gear can make the material more prone to wear and tear, thus lowering its effectiveness. Going for the lowest quality items to minimize costs can end up being more expensive. Therefore, you need to set your quality standards first to ensure the effectiveness of the PPEs.

Fit and Comfort. One of the factors that employers tend to overlook when shopping for their employees’ PPE is fit and comfort. Food industry workers operate several machines and stand for many hours. Inappropriate sizing makes the employee uncomfortable, resulting in less productivity. In addition, baggy or oversized gear may get caught in machinery or pose a fire risk if used near ovens or other high-heat areas.

Types of PPE for Food Safety

Several types of PPE are required in the food industry. Including gloves to prevent contamination, work shoes, facemasks, and aprons.

While face masks might not fully prevent inhalation of particles, they do prevent large respiratory drops from worker’s mouths and noses from coming into contact with food, thus preventing food contamination. Workers exposed to dangerous inhalants may require respirators to prevent illness.

The food industry involves a lot of movement. It also involves working with sharp objects such as knives. Good quality work shoes are required to protect your employee’s feet against cuts and other injuries. In addition, in a RTE environment, captive footwear programs reduce the risk of cross contamination. Employees also need anti-slip shoes to protect you against slips and falls.

The first step in determining your PPE needs is to conduct a hazards assessment of your work environment, and then match the needed PPE for each environment.

Latest Fashion Trends for Protective Apparel in the Food Industry

Fashion trends change in the clothing industry, and PPEs are no exception. Some of the recent trends in the food industry protective apparel include:

Lightweight apparel. At one time, it was believed that protective apparel should be heavy. But as textiles evolve and employee comfort and need for agility became greater concerns, apparel manufacturers and designers have learned how to combine thinner and lighter materials that provide the same protection as their older, heavier counterparts.

Need for higher level protection. The COVID-19 pandemic created a greater awareness of the importance of proper PPE, which led companies to seek PPE that that offers higher than the standard protection to protect their employees and food products.

Online presence. The growth of the Internet and e-commerce means many PPE users are increasingly relying on digital/e-commerce sites to evaluate and purchase PPE.

The food industry depends on multiple types of PPE to protect its workers as well as the products they make. When investigating PPE for employees, companies need to consider not only employee safety and comfort, but also food safety and protection. This can make it more challenging to make the right decision. Nevertheless, there are federal regulations as well as industry-set standards to help you find the best quality apparel for maximum user protection as well as hygiene and comfort.

Coronavirus, COVID-19

Tyson Foods to Mandate COVID Vaccines, Will Other Food Companies Follow?

By Maria Fontanazza
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Coronavirus, COVID-19

In a controversial move, Tyson Foods is mandating that all of its U.S. employees receive the COVID-19 vaccine. The company is requiring that the leadership team be vaccinated by September 24, office workers by October 1, and frontline employees by November 1. However, the mandate is “subject to ongoing discussions with locations represented by unions”, according to the company website.

Tyson Foods, along with other meat processors, has been plagued with COVID-19 outbreaks during the course of the pandemic. In December the company went as far as naming its first chief medical officer, a new role to help promote health, safety and wellness.

“We did not take this decision lightly. We have spent months encouraging our team members to get vaccinated – today, under half of our team members are,” stated Donnie King, president & CEO of Tyson Foods, in a company memo titled, “Our Next Step in the Fight Against the Pandemic”. Half of U.S. employees equates to 56,000 workers. Frontline employees who are fully vaccinated will receive $200.

A union representing Tyson employees, the United Food and Commercial Workers (UFCW), is concerned over the fact that the company is requiring vaccination before FDA has provided full approval of any COVID-19 vaccine. “We believe the FDA must provide full approval of the vaccines and help address some of the questions and concerns that workers have,” said UFCW International President Marc Perrone in a statement. “Additionally, employers should provide paid time off so that their essential workers can receive the vaccine without having to sacrifice their pay, and can rest as needed while their body adjusts to the vaccine and strengthens their immune system to fight off the virus.”

UFCW also released the following figures on COVID-19 infections, exposures and deaths nationwide among its union members:

  • 482 frontline worker deaths and at least 96,600 frontline workers infected or exposed
  • 197 grocery worker deaths and at least 43,300 grocery workers infected or exposed
  • 132 meatpacking worker deaths and 22,400 meatpacking workers infected or exposed
  • 67 food processing worker deaths and 13,100 food processing workers infected or exposed

Will other companies in the industry follow suit?

Select Subcommittee on the Coronavirus Crisis

OSHA, Tyson, Smithfield and JBS Under Investigation for COVID Outbreaks

By Food Safety Tech Staff
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Select Subcommittee on the Coronavirus Crisis

Last week U.S. Congressman and chairman of the Select Subcommittee on the Coronavirus Crisis James E. Clyburn (D-SC) launched an investigation into OSHA, Tyson Foods, Smithfield Foods and JBS USA over the nationwide coronavirus outbreaks at meatpacking plants that have led to the deaths of at least 270 employees. Nearly 54,000 workers at 569 U.S. meatpacking plants have tested positive for COVID-19, according to the Subcommittee and media reports.

Select Subcommittee on the Coronavirus Crisis“Public reports indicate that under the Trump Administration, the Occupational Safety and Health Administration (OSHA) failed to adequately carry out its responsibility for enforcing worker safety laws at meatpacking plants across the country, resulting in preventable infections and deaths. It is imperative that the previous Administration’s shortcomings are swiftly identified and rectified to save lives in the months before coronavirus vaccinations are available for all Americans,” the letter to James Frederick, deputy assistant secretary of labor for OSHA stated. “The Select Subcommittee strongly encourages you to take all necessary steps, including under President Biden’s Executive Order on Protecting Worker Health and Safety1and your other existing statutory authorities, to protect workers from the risks of the coronavirus by issuing clear guidance to employers, enacting an emergency temporary standard, and enhancing enforcement efforts.”

Clyburn and the Subcommittee issued a letter to Dean Banks, president and CEO of Tyson Foods, Dennis Organ, president and CEO of Smithfield Foods, and Andre Nogueira, president and CEO of JBS USA. Each letter pointed out the shortcomings of each company in adequately addressing the outbreaks that occurred among its workers.

“Public reports indicate that meatpacking companies … have refused to take basic precautions to protect their workers, many of whom earn extremely low wages and lack adequate paid leave, and have shown a callous disregard for workers’ health,” Clyburn stated in the letter. “These actions appear to have resulted in thousands of meatpacking workers getting infected with the virus and hundreds dying. Outbreaks at meatpacking plants have also spread to surrounding communities, killing many more Americans.”

The Subcommittee has asked OSHA and each company for documentation related to the COVID infections and deaths, as well as their enforcement of worker protections under the Trump administration.

Maria Fontanazza, Food Safety Tech
From the Editor’s Desk

Top 10 from the 2020 Food Safety Consortium Virtual Conference Series

By Maria Fontanazza
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Maria Fontanazza, Food Safety Tech

2020 has taken a lot away from us, but it has also taught us the importance of being able to quickly adapt (can you say…“pivot”?) to rapidly changing, dire circumstances. For Food Safety Tech, that meant shifting our in-person annual Food Safety Consortium to a virtual event. I really look forward to the Consortium each year, because we are a virtual company, and this is the one time of year that most of the Food Safety Tech and Innovative Publishing Company team are together. When we made the decision to move the event online, we really wanted to be considerate of our attendees, who more than likely were quickly developing webinar and Zoom fatigue. So we created a series of 14 Episodes that spanned from September until last week. I am not going to single out one episode or speaker/session in particular, because I think that all of our speakers and sponsors brought a tremendous amount of education to the food safety community. Thank you.

With that, the following are my top 10 takeaways from the 2020 Food Safety Consortium Virtual Conference Series—and this simply scratches the surface. Feel free to leave a comment on what you learned from our speakers and the discussions this fall.

  1. COVID-19 has served as the springboard for digital transformation, more of which we have seen in the past nine months than in the last several years or even decade. Tech advances are increasing efficiencies, adding the ability to be more predictive, giving more visibility and traceability in the supply chain and offering increased accessibility. These include: IoT; Advanced analytics; Artificial intelligence (FDA has been piloting AI technology); Graph technology used in supply chain visibility; blockchain; mixed reality; and remote monitoring.
  2. There are new responsibilities that come with being a part of America’s critical infrastructure and protecting essential frontline workers.
    • Companies must have a strong relationship (or work to build one) with local health departments and authorities
    • Name a COVID Czar at your company: This is a designated person, located both within a production facility as well as at the corporate location, who manages the bulk of the requirements and precautions that companies should be undertaking to address the pandemic.
  3. Every company should have an emergency risk management plan that centers around good communication.
  4. The COVID-19 pandemic is a reminder to us that the threat for viruses is always lurking beneath the surface. There is still work to be done on the food labs side regarding more rapid assays, leveling the playing field regarding conducting viral testing, and technology that enables labs to get safe, effective and consistent results.
  5. Lessons in sanitation: Investment in sanitation is critical, there are no shortcuts, and empower your sanitation employees, give them the tools they need to effectively do their jobs.
  6. The FDA’s FSMA Proposed Traceability rule is expected to be a “game changer”. It will lay the foundation for meaningful harmonization. FDA Deputy Commissioner for Food Policy and Response Frank Yiannas said the pandemic really put a spotlight on the fact that the U.S. food industry needs better tracking and tracing.
  7. Know your suppliers, know your suppliers, know your suppliers!
  8. Biofilms are ubiquitous, and the process of detecting and eliminating Listeria in your facility is a marathon with no finish line.
  9. Food Safety Culture is a profit center, not an overhead department.
  10. “If I’m not well, I can’t do well.” Making sure your needs are met personally and professionally plays an important role in being a better contributor to your company’s success.

As part of a special offering, we are making four episodes of the 2020 Food Safety Consortium Virtual Conference Series available on demand for free. Head to our Events & Webinars page to register to view the sessions on or after January 2021.

Jill Henry, Essity
FST Soapbox

The New Hygiene Standard: Building Trust Through Employee Safety

By Jill Henry
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Jill Henry, Essity

The pandemic has heightened the need for a new hygiene standard at food manufacturing sites. On August 19, OSHA and FDA released a health and hygiene checklist for food manufacturers to increase employee safety and help mitigate the spread of COVID-19 at sites. This checklist reinforces the importance of elevating hygiene standards, but it can be difficult to know where to start—especially for food manufacturers aiming to maintain productivity while maximizing hygiene compliance and safety.

For food manufacturers seeking to navigate OSHA and FDA’s new guide, it’s important to remember that no matter the environment, the basics of hygiene remain true. You can kick-start your updated hygiene plan by implementing simple hygiene best practices and establishing comprehensive and clear protocols to achieve compliance on the road ahead. Remember, employee health and productivity begins with a safety-first mindset. Start by establishing a strong foundation with these tips that will help you maintain your food manufacturing site’s hygiene checklist amid COVID-19 and beyond.

Achieve Hand Hygiene Compliance

Hands are the most exposed part of the body to pathogens. Therefore, hand hygiene is considered one of the most important and effective measures to avoid the transmission of harmful pathogens, viruses and diseases. Given this, consistent and proper handwashing is a fundamental aspect of any hygiene plan, especially in food manufacturing sites where employees frequently touch common surfaces (e.g., door handles, technical equipment, etc.) . People often (and unknowingly) touch their eyes, nose and mouth after touching contaminated surfaces, which contributes to potential transmission.

Hand hygiene is proven to be a primary line of defense in stopping the spread of COVID-19 and other pathogens, but only when conducted properly. To maintain hand hygiene compliance, the CDC advises that employees thoroughly wash their hands with soap and water, under warm or cold water for at least 20 seconds, before properly drying their hands with a paper towel. All too often, people forget the importance of hand drying in the handwashing process, but it’s very significant as hand drying can help remove any remaining germs from the skin. In addition, germs can be transferred more easily to and from wet hands, which makes hand drying critical after a thorough handwashing.

Utilize Signage as Visual Cues

While many are familiar with the importance of hand hygiene, it can be difficult to put into practice when employees are busy on the job and forging ahead on production lines. Keep hand hygiene top of mind by utilizing visual cues, such as signage, to remind employees about when, where and how to wash their hands properly. Signage serves as visual reminders to achieve proper hand hygiene compliance and is an important part of establishing a site’s hygiene standard and foundation.

Opt for signage that includes a direct call to action for employees. Using the word “you” can also increase efficacy by calling directly upon the person reading the sign to participate in hand hygiene compliance. Additionally, signage should be updated frequently to keep employees engaged and hand hygiene top of mind. New and fresh reminders on the importance of handwashing will help keep employees attentive, but if you don’t have the time or resources to continually update on-site signage, leverage free tools available online to help you get started.

Establish Surface Cleaning Protocols without Sacrificing Productivity

COVID-19 can spread from surface-to-person contact. This can happen when an employee carrying the virus touches technical equipment on a production line that is not properly wiped down before the next employee’s shift. With this in mind, it’s critical to establish effective surface cleaning protocols that mitigate instances of cross-contamination and don’t create downtime in production or processing.

To create an efficient surface hygiene plan, assess high-touch areas, and develop a list based on where you observe high-touch surfaces to ensure these areas are properly sanitized ahead of shift changes. Provide employees with the surface cleaning checklist that enables them to effectively sanitize surfaces prior to departing their shift. The checklist should include key areas that must be disinfected, as well as tips to properly disinfect surfaces.

When disinfecting surfaces, use an approved disinfectant and a disposable cloth, which ensures the surface is being wiped down with a non-contaminated wiper each time. If using an alcohol-based product, use one with a minimum of 70% alcohol (i.e., Ethanol or Isopropyl alcohol), and always follow the manufacturer’s application guidelines.

Optimize Sanitization Stations and Dispenser Placement
Think strategically and practically about dispenser placement in food manufacturing sites because where sanitizer dispensers are placed makes a difference in whether they are used by employees. Similar to establishing surface cleaning protocols, start by observing where high-traffic areas are on site, and consider critical entry and exit points that would benefit from a dispenser. Dispensers should also be placed in clear view, so they are easily accessible for employees. Consider pairing signage with dispensers as a helpful reminder to utilize these stations and provide instruction on best practices to sanitize effectively.

Optimizing dispenser placement doesn’t stop with implementation. Once dispensers are in place, continue to monitor where dispensers are most frequently used, and assess other areas prime for dispensers. Remember: Employee hygiene and safety is a priority, and optimally placing dispensers and hygiene solutions where they are needed to encourage use is key to creating a safer environment. Place dispensers in areas such as common spaces, near production lines, in locker rooms, and at entrances and exits in order to encourage regular surface cleaning and hand washing. Flexible mounting solutions and portable solutions can facilitate access in harsher environments. The availability of hygiene products encourages their use, so be sure to keep dispensers fully stocked.

Promote Awareness among Employees and Instill Confidence

It’s more important than ever to build employee trust and confidence. As the saying goes, knowledge is power. Communicate frequently with employees and distribute guidelines around COVID-19 so that they understand the measures being introduced and how you will continually monitor your environment. Consider implementing COVID-19-specific training and education sessions that empower employees to ask questions about hygiene and safety measures on site, and provide essential instruction on COVID-19 and what to do if a case is confirmed among employees. These sessions can also be used to provide further education and emphasis on how individuals can maintain hygiene compliance for the greater good of the manufacturing site and their colleagues.

In the current environment, it’s clear that food manufacturers must secure a new hygiene standard to maintain employee health and safety and continue to deliver essential products. But with ongoing shifts, changes and uncertainty, it can be challenging to juggle operations and hygiene compliance—while instilling trust and confidence among employees. Whether a site is continuing, resuming or re-evaluating operations amid the current pandemic, it is critical to maintain a strong foundation for hygiene, so that employees are safe and essential production moves ahead.

Checklist

2020 FSC Episode 3 Wrap: Does Your Company Have a COVID Czar?

By Maria Fontanazza
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Checklist

Navigating the murky waters that COVID-19 presents has been no easy task for food companies. Being part of America’s critical infrastructure has meant that adapting to the pandemic has been unavoidable, and the industry has directly taken on the challenges to ensure the nation has a reliable food supply. But what about the frontline workers, their safety and how this ties into operational continuity as a whole? During last week’s episode of the 2020 Food Safety Consortium Virtual Conference Series, an expert panel discussed the practices that food companies have put in place during the pandemic and offered advice on managing the entire scope of COVID-19 challenges including screening employees and preventing infection transmission, safeguarding workers and the facility, administrative and engineering controls, education and training, and risk management.

“No doubt that it is a concert of controls and interventions that have allowed our industry to effectively combat this over the past several months,” said Sanjay Gummalla, senior vice president of scientific affairs at the American Frozen Foods Institute. “By and large, the industry has taken charge of this situation in a way that could not have been predicted.” Gummalla was joined by Trish Wester, founder of the Association for Food Safety Auditing Professionals and Melanie Neumann, executive vice president and general counsel for Matrix Sciences International.

First up, the COVID Czar—what is it and does your company have one? According to Neumann, this is a designated person, located both within a production facility as well as at the corporate location, who manages the bulk of the requirements and precautions that companies should be undertaking to address the pandemic. “We’re not trained in people safety—we’re trained in food safety,” said Neumann. “And it’s a lot to ask, especially on top of having to manage food safety.”

Some of the takeaways during the discussion include:

  • Administrative controls that must be managed: Appropriate cleaning, disinfection and sanitation; PPE; employee hygiene; shift management; and surveillance mechanisms
  • PPE: “It’s really clear now that face masks and coverings are critical in managing source control—it prevents the spread and protects other employees,” said Gummalla. “All employees wearing masks present the highest level of protection.” When the attendees were polled about whether face coverings are mandatory where they work, 91% answered ‘yes’.
  • Engineering controls within facility: Physical distancing measures such as plexiglass barriers, six-foot distance markings, traffic movement, limited employees, and hand sanitizer stations. “Engineering controls in a facility involve isolation from the virus,” said Gummalla. “In this case, controlling [and] reducing the exposure to the virus without relying on specific worker behavior. This is where facilities have implemented a great amount of thoughtful intervention, probably at a high capital cost as well.” Companies should also consider airflow management, which can involving bringing in an outside professional with expertise in negative and positive air pressure, advised Wester.
  • Verification activities and enterprise risk management: Neumann emphasized the importance of documentation as well as advising companies to apply a maturity model (similar to a food safety culture maturity model) to a COVID control program. The goal is to ensure that employees are following certain behaviors when no one is watching. “We want to be able to go from ‘told’ to ‘habit’,” she said.
  • Education and training: Using posters, infographics, brochures and videos, all of which are multilingual, to help emphasize that responsibility lies with every employee. “It is important to recognize the transmission is predominately is person to person,” said Gummalla. Do you have a daily huddle? Neumann suggests having a regular dialogue with employees about COVID.
  • The future, 2021 and beyond: Does your company have a contingency, preparedness or recovery plan? “The next six months are going to be critical; in many parts of the world, the worse is not over yet,” said Gummalla. “There will be a lot more innovation in our industry, and communication will be at the heart of all of this.”

As part of a special offering, Episode 3 has been made available for viewing on demand for free. Register to view the on-demand recording.

Pratik Soni, Omnichain
Retail Food Safety Forum

Top Three Visibility Challenges in Today’s Food Supply Chain

By Pratik Soni
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Pratik Soni, Omnichain

To say that COVID-19 has been disruptive would be putting it mildly. The pandemic’s sudden and seismic impact has brought major upheaval across industries—the food industry and its supply chain included.

There was the initial panic buying that drove upticks in consumer demand for which few manufacturers and grocers were prepared, resulting in widespread product shortages. With restaurants closed, distributors and suppliers were left with considerable excess inventory—most of which ended up as waste and losses. Inside production sites and plants, many had to try and maintain their output with a reduced workforce, even as demand continued to climb. Meanwhile, some plants unfortunately have had to shut down operations on account of employees testing positive for COVID-19.

In the time since the outbreak, the food supply chain has stabilized to an extent. Store shelves are continuously being replenished with products. Restaurants have started reopening with new health and safety measures. Yet even as the industry takes gradual steps toward recovery, the underlying problem that led to the magnitude of COVID-19’s impact persists: Lack of visibility. There was lack of visibility into supply and demand and what was happening upstream and downstream across the supply chain, which prevented timely, proactive action to optimize operations in face of disruption.

Looking ahead, participants across the food supply chain will need enhanced end-to-end visibility so that they can work together to get ahead of the curve. As part of gaining this visibility, they will need the transparent exchange of information and cohesive collaboration to adapt especially as the food industry continues to see shifts in consumer behavior and the marketplace in the wake of COVID-19—particularly in the following three key areas.

Food Distribution

While food producers have been working tirelessly to keep grocery store shelves and restaurant kitchens well stocked, there continues to be fluctuating availability on certain products, such as eggs, dairy, poultry and meat. This has led distributors and suppliers to increase their prices when selling these goods to stores and restaurants, who have had to then pass the additional costs on to consumers through their own price increases and surcharges, respectively. One report from CoBank, a cooperative bank part of the Farm Credit System, notes there could be as much as a 20% increase in the price of pork and beef this year due to supply issues.1 Many grocers have also implemented purchase limitations on consumers to combat shortages.

These downstream implications stem largely to uncertainty in the supply chain, with stores and restaurants unsure about available supply upstream and when they can expect to receive shipments. But if there was clearer visibility and transparency between production, distribution, transportation, food service and retail, then all parties could better anticipate and plan for supply shortages or delays. For instance, if a meat processing plant has to temporarily close due to cases of COVID-19, they can immediately communicate to the rest of the supply chain so that parties downstream can readily find alternative sources and minimize any necessary price inflations or other implications to consumers.

Consumer Demand

Even with the reopening of restaurants, people will likely choose to cook more of their meals at home. It was a trend that began with restaurant closures and will continue for the foreseeable future as consumers remain cautious of dining out. While this may bring tough times ahead for the food service industry, the grocery sector is seeing a huge lift in business. Research from restaurant management platform Crunchtime shows that, towards the end of June, restaurants were only seeing 64.5% of their pre-COVID-19 sales levels.2 At the same time, a study by Brick Meets Click and Mercatus reveals U.S. online grocery sales reached a record $7.2 billion in June, up nearly 10% over May.3

For food companies and brands, growth in the grocery sector has presented a challenge in the way of demand planning and forecasting. I’ve personally spoken with several company executives who have seen significant upticks in orders from their grocery channel partners—an increase for which they didn’t forecast—and are now struggling to adjust production levels accordingly to avoid the risk of excess production that would lead to unnecessary costs, wastes and losses. In such instances, real-time visibility into transactional activity and stock levels at the retail level would help production planners improve the accuracy of their forecasts and enable them to think steps ahead before orders come in and thereby optimally balance supply with demand. Stores would remain well stocked and the supply chain could flow in a more efficient and profitable way for all participants.

Food Handling

Without question, public health is the number one priority right now. Participants at each point in the food supply chain today need to communicate with each other, as well as to consumers, that they’re following best practices for social distancing, disinfecting and other precautions. It’s not to prevent the possible transfer of the virus via actual products, as the FDA notes there is currently no evidence of transmission through food or packaging. But rather, it’s to build greater confidence in the food supply chain—that everyone is doing their part to support individual and collective health and safety, which in turn prevents possible facility closures or other case-related bottlenecks that would inhibit consistent supply to the market.

There also has to be confidence that, amid these countermeasures for COVID-19, companies are still upholding their commitments to food safety, integrity and proper handling. What can support that confidence is data—shared data from every point in a product’s journey from source to shelf. The data should be transparent and available to all supply chain participants as well as immutable so that it is tamperproof and fully traceable should there be any problem, such as mislabeling or a foodborne illness. The data ultimately holds everyone accountable for their role in ensuring a safe food supply chain.

To achieve the level of visibility outlined above, the food industry will have to break away from legacy processes involving the siloed management of operational systems and databases. Instead, the disruption seen during COVID-19 and ongoing shifts in the marketplace should encourage companies to consider digital transformation and technologies that can enable a more cohesive and nimble food supply chain. These are technologies like blockchain, which provides a decentralized, distributed ledger to publish and share data in real time. Moreover, artificial intelligence that can leverage incoming real-time data to guide next-best actions, even when the unexpected occurs. Personally, I always return to the notion that the supply chain is a team sport. You need visibility to know what each team member is doing on the field and how to align everyone on a gameplay. The digital solutions available today offer that visibility and insight, as well as the agility to pivot as needed to obstacles along the journey from source to shelf.

References

  1. Taylor, K. (May 6, 2020). “The American meat shortage is pushing prices to unprecedented heights — here’s how it could affect your grocery bill.” Business Insider.
  2. Maze, J. (July 7, 2020). “As the coronavirus resurges, restaurant sales start slowing again.” Restaurant Business.
  3. Perez, S. (July 6, 2020). “US online grocery sales hit record $7.2 billion in June.” TechCrunch.
Melanie Neumann, Neumann Risk Services
FST Soapbox

The COVID-19 Record Retention Conundrum

By Melanie Neumann, JD, MS
2 Comments
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.
Food Safety Tech

Upcoming Webinar: Is Your Plant COVID-19 Safe?

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Food Safety Tech

The COVID-19 pandemic has caused significant disruption to the food industry, especially in meat and poultry processing facilities. On Wednesday, May 27, Food Safety Tech is hosting a complimentary webinar, “Is Your Plant COVID-19 Safe?”, to provide realistic advice and tips on how to mitigate workplace exposure risks related to COVID-19. Our subject matter expert speaker, Trish Wester, founder of The Association for Food Safety Auditing Professionals, will also insights into updated cleaning and sanitation practices, and how companies can make sure that their facilities are more prepared for the entire period of the pandemic. The event is sponsored by Sterilex.

Register now!