Meat and Poultry in the Supply Chain Are Deemed Essential to National Defense

On April 28, 2020, the President invoked the Defense Production Act and issued an Executive Order stating that “meat and poultry in the criteria specified in the [Defense Production Act.]”. Briefly, section 4511(b) allows the President to control the general distribution of material where, “(1)…such material is a scarce and critical material essential to the national defense, and (2) that the requirements of national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civil market to such a degree as to create appreciable hardship.”

Per the Executive Order, “the Secretary of Agriculture shall take all appropriate action…to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA.” In conjunction with that Order, and in light of the most recent Morbidity and Mortality Weekly Report from the CDC, OSHA and the CDC teamed up and issued an Interim Guidance to the Meat and Poultry Processing Workers and Employees. This Guidance is extremely general and vague. It calls on employers to ensure compliance with state and local orders/laws. Employers cannot simply rely on the Interim Guidance, rather they must stay in tune with the local laws where their facilities are located.

Below is a general overview of the Interim Guidance:

COVID-19 ASSESSMENT AND CONTROL PLAN

QUALIFIED WORKPLACE COORDINATOR

Each facility must have a Qualified Workplace Coordinator. This individual is responsible for the COVID-19 assessment and control. The Workplace Coordinator must be known and accessible to all employees.

INFECTION CONTROL AND OCCUPATIONAL SAFETY AND HEALTH PLANS

Every facility must have an Infection Control and Occupational Safety and Health Plan. The Guidance recommends using an approach that is based on the Hierarchy of Controls. These plans must be specific to the facility. It is crucial for employers in this space to take the time and create a detailed safety plan.

Engineering Controls

Engineering Controls, involve changing the physical work environment so that workers are spaced at least six feet apart, by implementing changes in the process such as:

  • Modify alignment of workstations so that workers are not facing each other

  • Post signs regarding social distancing

  • Partition employees using strip curtains, plexiglass, dividers or other material.

  • Implement adequate ventilation in work areas.

  • Ensure fans are not blowing air directly from one worker to another.

  • Insert multiple hand-washing stations at each facility.

  • Reduce crowding at clock-in/clock-out stations by (1) staggering start/end times, (2) add more stations to each facility, (3) consider touch free methods.

  • Add safeguards to break areas such as partitions, table and char arrangement, adding alternate places for employees to take a break.

Administrative Controls

Administrative Controls involve employer implemented policies such as:

  • Single file movement throughout the plan with a 6 foot distance between each worker

  • Designate an Employee to monitor and facilitate the social distancing policy

  • Stagger break times

  • Provide additional break areas and restrooms to avoid crowds.

  • Stagger shift start and end times

  • Post signs, floor markings and other visual cues to remind workers to social distance;

  • Discourage carpooling among employees. (NOTE: If this is unavoidable, the Guidance includes specifics for company shuttle vehicles and carpooling.)

  • Cohort Workers so that groups of workers are always assigned to the same shifts.

  • Provide Hand Sanitizers, soap, clean running water and single use paper towels.

LEAVE AND INCENTIVE POLICIES

The Guidance explicitly says for employers to “analyze sick leave policies and consider modifying them to make sure that ill workers are not in the workplace.” It goes further to require that all “employees are aware and understand these policies.”

EMPLOYEE NOTIFICATION POLICY

All employers should implement a system whereby employees are aware of how to report their own symptoms or contact.

TRAINING

The Guidance explains that the employees should be educated on social distancing, hygiene, and PPE protocol.

EQUIPMENT AND WORK-AREA DISINFECTING

Employers must ensure that the machinery and tools are disinfected, “at least as often as workers change workstations or move to a new set of tools.” Increase cleaning in common spaces, and frequently touched areas.

EMPLOYEE SCREENING

The Guidance explains that meat and poultry employers may screen their workers. Screening workers, “is an optional strategy that employers may use.” The Guidance goes on to list possible methods of screening: verbal screening regarding symptoms, temperature checks. The Guidance goes on to include examples of methods to screen employees. It must be noted that this federal guidance is more lenient that the recent order from the Commonwealth of Pennsylvania relating to any businesses returning to work. See previous blog on the Pennsylvania Order. It is important for employers in the meat and poultry space, and really any space, to adhere to the orders and requirements of the localities where they are located.

MANAGING SICK WORKERS

Sick or symptomatic employees must be immediately sent home. The employer must then inform all individuals with whom the sick employee came into contact of the potential COVID-19 contact. The Guidance simply tells the employers to “instruct fellow workers about how to proceed” and then includes a link to the CDC Public Health Recommendations for Community-Related Exposure. The Guidance also enlightens the employers to disinfect all areas where the employee worked.

The Guidance also explains that employees who had close contact with a confirmed or suspected case of COVID-19, who are asymptomatic may continue to work so long as they abide by the CDC Critical Infrastructure Guidance. The Guidance continues to re-direct the reader and explain that employers must follow the CDC Guidance relating to the Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settings.

PPE

Unlike the Pennsylvania Department of Health Order, this Guidance provides discretion for employers in the meat and poultry sector regarding PPE. The Guidance states that employers, “must conduct a hazard assessment to determine if hazards are present or are likely to be present for which workers need PPE.” The Guidance cites OSHA and the regulations that relate to PPE. Should the assessment results indicate that PPE is needed, then the Guidance includes a detailed list of suggestions relating to PPE.

This Guidance affords employers almost complete discretion with respect to health and safety protocols to put in place. It is crucial that employers understand their state and local orders involving COVID-19 safety.

WORKERS’ RIGHTS

While the Guidance is fairly general and affords employers much discretion, it explicitly reminds employers of Section 11(c) of OSHA. Specifically, Section 11(c)(1) states:

No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise b such employee on behalf of himself or others of any right afforded by this chapter.

It is prudent for employers in the meat and poultry business to prepare and implement detailed and specific Safety Policies that protect the employees. Despite the vague nature of the Federal Guidance, it is important to know that many states have implemented Orders that require the implementation various health and safety measures to ensure that their employees and thereby the community are safe.

In other words, if your facility is merely complying with the Interim Guidance, there is chance that your facility is in violation of a State Order. Reach out to counsel with questions or concerns regarding your facility.

Susie Cirilli