Workers in essential industries are increasingly concerned about their health and safety in the workplace. This is most clearly evidenced by the recent strikes, or threats of strikes, by employees at large manufacturing and distribution centers. Further, meat processing plants are reporting an increasing number of employees contracting COVID-19, requiring these plants to shut down or consider shutting down. Agricultural workers have been deemed essential by every state. These employees are essential to maintaining the health and welfare of the animals, continuing crops, and the production and processing of food items for the public. Therefore it is critical that these industries keep functioning.

Guidance for Meat Processing Plants

Meat processing plants appear to be particularly susceptible to employee exposure to COVID-19. This is largely due in part to the close proximity with each other in which processing workers work, the duration of shifts, and shared workspaces.  Further, workers in this industry commonly travel to work together.  In North Carolina alone, at least five hog and poultry processing plants have reported positive COVID-19 cases. As a result, on April 20, 2020, North Carolina state and agricultural officials issued Interim Guidelines in order to prevent exposure and contain the spread of the virus in processing plants. The guidelines list three key components to the prevention plan: 1) minimizing the risk for exposure to the virus; 2) early detection of people with symptoms of COVID-19; and 3) isolating suspected or positive cases from others until they are no longer infectious.

The guidelines further dictate that processing facilities should:

• Create a COVID-19 Infection Control Plan;
• Conduct worksite assessments to identify COVID-19 risks and prevention strategies;
• Follow CDC interim guidance to implement safety practices for essential workers that may have been exposed to the virus;
• Conduct contract tracing;
• Follow the hierarchy of controls (engineering controls à cleaning/disinfection/sanitation à administrative controls à PPE and source control) when implementing infection control practices, and
• Provide infection control information and training for all workers.

The specific details for each of these guidelines are clearly laid out in the Interim Guidelines. But the takeaway is that processing facilities need to identify and address the risk areas at the facilities (including transportation to the facilities), plan ahead for how to operate with a reduced workforce, adapt workspaces to allow for social distancing, pre-scan employees for fevers (>100.4 F) and other symptoms prior to entry into the facility, and require sick employees to stay home. These interim guidelines will be updated as more research and information is gathered.

On Sunday, April 26, the CDC and OSHA also issued interim guidance for meat and poultry processing facilities.  Similar to the North Carolina guidance, the CDC and OSHA recommend changing processing lines and workplace setups to permit social distancing between employees.  Importantly, the CDC and OSHA guidance recommends that meat and poultry processing facilities work directly with the appropriate state and local public health officials and OSHA professional to develop their COVID-19 assessment and control plans.

The CDC and OSHA interim guidance is in addition to prior OSHA guidance on the responsibilities of employers to provide safe workplaces during the COVID-19 outbreak. This guidance provides that employers should review the risks their employees face and implement mitigation plans.  Given this guidance, employers should:

• Develop an infectious disease preparedness and response plan;
• Prepare to implement basic infection prevention measures;
• Develop policies and procedures for efficient identification and isolation of sick individuals;
• Develop, implement and inform workers of workplace flexibilities and protections
• Implement workplace controls, including engineering controls, administrative controls, and use of personal protective equipment.

Details on how to implement this guidance are available here.

On Tuesday, April 28th, President Trump signed an executive order requiring meat processing plants to stay open under the Defense Production Act.  The order states that closures of meat and poultry processing facilities “threaten the continued functioning of the national meet and poultry supply chain, undermining critical infrastructure during the national emergency.  Given the high volume of meat and poultry processed by many facilities, any unnecessary closures can quickly have a large effect on the food supply chain.”  As such, President Trump finds that the meat and poultry in the food supply chain meet the criteria to invoke the Defense Production Act.  He therefore delegated to the Secretary of Agriculture the power to allocate materials, services, and facilities in such manner, upon such conditions, and to such extent as is deemed necessary or appropriate to promote the national defense.  In other words, the Secretary of Agriculture now has the authority to take all appropriate action to ensure that meat and poultry processors continue operations consistent with the recently issued interim guidelines from the CDC and OSHA.

This order comes as a result of reports that major processing facilities have already shut down large plants due to exposure to the virus and that these plant closures may result in a reduction of the country’s processing capacity by up to 80%.  In addition, the administration stated that it will issue guidance that will provide additional liability protections for the facilities.  Once this additional liability guidance is released, this blog post will be updated.

Part 2 of this blog series will discuss General Guidance for Employers and how to address employees right to refuse to work.

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