Tag Archives: OSHA

Melanie Neumann, Neumann Risk Services
FST Soapbox

The COVID-19 Record Retention Conundrum

By Melanie J. Neumann
No 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.
Alert

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

By Maria Fontanazza
No Comments
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.

Michelle Lombardo Smith, The Wenger Group
FST Soapbox

Top of the Pecking Order: How We Transformed Our Processes

By Michelle Lombardo Smith
No Comments
Michelle Lombardo Smith, The Wenger Group

A 75-year-old feed manufacturer making more than 2,000 feed formulas is bound to have a lot of business complexities. Add to that several years of rapid growth combined with outdated, manual processes. Several years ago, this was the situation we faced at our family-owned feed manufacturer and egg/poultry provider in the mid-Atlantic region.

We needed a way to simplify and streamline key processes, such as activities involved with safety and compliance. After evaluating several enterprise content management systems in 2015, we eventually selected Laserfiche to digitize records, implement electronic forms and automate manual workflows. While we completed an initial Laserfiche software install in 2016, we were still tasked with the process of building out solutions the company wanted to use in house, and we therefore continue to work closely with the company today.

Meeting Regulations With Data Sheets

Our initial project focused on digitizing our collection of safety data sheets, standardized documents that contain occupational safety and health data. Prior to implementing this software, we relied on paper manuals across different locations. Managing the creation of new data sheets and ensuring old ones were removed became quite the task. This project couldn’t have come at a better time, as the Occupational Health and Safety Administration (OSHA) had recently mandated changes to the data sheets.

By digitizing data sheets and storing them in a central repository, the documents were made more accessible and searchable for mill managers, and compliant to the new mandated standard. Additionally, data sheets were easily retrieved for any first responders seeking to understand what chemicals were in a facility in the event of a fire. It now takes just minutes to search for and retrieve documents, helping the organization stay in compliance with state reporting. Having the ability to create and add new sheets immediately is a tremendous benefits as well. These new capabilities allow us to help keep employees safer than ever before.

Shortened Delivery Processes

The next process that needed to be targeted was deliveries. Delivery tickets at the feed mills were billed based on production weight in the company’s enterprise resource planning software, and delivery weight was entered manually when the physical tickets were returned to the office, which could sometimes be days after the product was shipped. When the shipped weight showed a different amount than the production weight, the finance team had to issue the customer a credit leading to more inefficiency and a wrinkle in customer confidence.

Laserfiche allowed the company to develop delivery tickets to be scanned at the mill. Tickets are now available in 24 hours, and the processing time for invoicing has gone from six hours to just three. Warranty costs have decreased while customer confidence has increased.

Mobile App to the Rescue

Finally, with the mobile app the organization was able to decrease the complexity for one of its farming divisions, Dutchland Farms, all while staying in legal compliance. This specific division contracts egg production and pullet growing. The FDA published its Veterinary Feed Directive (VFD) regulations in 2015, a regulation that directly applied to Dutchland’s this team of growers and producer. The directive added to the list of antibiotics that required a veterinarian’s prescription to administer. In addition, flock owners now had to have a flock health plan and an established relationship with a veterinarian. We initially had a manual process to write and store the plans, but that process was digitized and automated with Laserfiche in 2017. Service technicians can now get electronic forms signed at the farm and be immediately transmitted to the company’s consulting veterinary practician, who lives out of the country. As a result, we were able to significantly reduce the time from farm signature to vet approval/signature of the Flock Health Plans, and saved on a huge amount of paper copies and mail costs.

What’s next? These days, we’re searching for a new ERP system, a multi-year journey that will include scanning capabilities and an expanded role for Laserfiche. Meanwhile, all the products developed are still a work in progress even as the software expands to teams like quality assurance and human resources.