Category Archives: COVID-19

The SBA and Treasury Issue Safe Harbor for Necessity Certification and Extend Deadline to Repay PPP Loan

Contributed by guest author Andrew Podgorny, May 15, 2020

On May 13, 2020, the SBA and Treasury issued additional guidance with respect to the necessity certification that borrowers must make when applying for a PPP loan. FAQ #46 provides a safe harbor for borrowers receiving loans which are less than $2 million and also indicates that, in the event the SBA determines that a borrower receiving a loan in excess of $2 million lacks an adequate basis for making the necessity certification, such borrower will be afforded the opportunity to repay the loan. Specifically, FAQ #46 states:

Question: How will SBA review borrowers’ required good-faith certification concerning the necessity of their loan request?

Answer: When submitting a PPP application, all borrowers must certify in good faith that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” SBA, in consultation with the Department of the Treasury, has determined that the following safe harbor will apply to SBA’s review of PPP loans with respect to this issue: Any borrower that, together with its affiliates, received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith.

SBA has determined that this safe harbor is appropriate because borrowers with loans below this threshold are generally less likely to have had access to adequate sources of liquidity in the current economic environment than borrowers that obtained larger loans. This safe harbor will also promote economic certainty as PPP borrowers with more limited resources endeavor to retain and rehire employees. In addition, given the large volume of PPP loans, this approach will enable SBA to conserve its finite audit resources and focus its reviews on larger loans, where the compliance effort may yield higher returns.

Importantly, borrowers with loans greater than $2 million that do not satisfy this safe harbor may still have an adequate basis for making the required good-faith certification, based on their individual circumstances in light of the language of the certification and SBA guidance. SBA has previously stated that all PPP loans in excess of $2 million, and other PPP loans as appropriate, will be subject to review by SBA for compliance with program requirements set forth in the PPP Interim Final Rules and in the Borrower Application Form. If SBA determines in the course of its review that a borrower lacked an adequate basis for the required certification concerning the necessity of the loan request, SBA will seek repayment of the outstanding PPP loan balance and will inform the lender that the borrower is not eligible for loan forgiveness. If the borrower repays the loan after receiving notification from SBA, SBA will not pursue administrative enforcement or referrals to other agencies based on its determination with respect to the certification concerning necessity of the loan request. SBA’s determination concerning the certification regarding the necessity of the loan request will not affect SBA’s loan guarantee.

Moreover, in light of the timing of FAQ #46’s release, the SBA extended the deadline for borrowers to repay its PPP loan from May 14, 2020 to May 18, 2020.

Wisconsin Strikes Down Stay-at-Home Order: Non-essential Businesses Prepare to Reopen

Contributed by Peter Hansen, May 14, 2020

State of Wisconsin

The Wisconsin Supreme Court struck down Emergency Order 28, the Safer at Home Order, for failing to follow emergency rulemaking procedures in a lengthy 161-page opinion – effective immediately.  So, what does this mean for Wisconsin employers?

Local Orders Still Apply

Local officials may enact their own stay-at-home orders – and indeed, some already have.  Dane and Kenosha counties each issued orders adopting the majority of Emergency Order 28’s provisions, effective immediately and continuing to May 26, 2020.  Brown County issued a similar order in effect until May 20, 2020, the City of Racine issued an order in effect until May 26, 2020, and Milwaukee’s Mayor has taken the position that the city’s prior stay-at-home order in still in place.

More local orders will follow, so any employer planning on reopening or changing their practices as a result of the Wisconsin Supreme Court’s decision must verify that they are not violating any local order.

Preparing the Workplace

Non-essential businesses preparing to reopen can take a number of steps recommended by the Wisconsin Department of Health Services to prevent and reduce COVID-19 transmission among their workforce, including:

  • Whenever possible, maintain a distance of at least 6 feet from others
  • Require employees who have symptoms of respiratory illness to stay home and do not come to work until they are free of fever (>100.4°F) AND/OR respiratory symptoms (for example, cough, shortness of breath) for at least three days (72 hours) without the use of fever-reducing medicine AND ten days have passed since symptoms first appeared
  • Provide tissues and no-touch disposal receptacles for use by employees and customers
  • Encourage employees to wash their hands often with soap and water for at least 20 seconds or to use hand sanitizer with at least 60% alcohol if soap and water are not available
  • Routinely clean and disinfect frequently touched objects and surfaces such as workstations, keyboards, telephones, handrails, and doorknobs
  • Advise employees to avoid touching their eyes, nose, and mouth with unwashed hands

Employers should also consider implementing the Centers for Disease Control and Prevention’s guidance for responding to COVID-19, including:

  • Conducting daily health checks
  • Conducting a hazard assessment of the workplace
  • Encouraging employees to wear cloth face coverings in the workplace, if appropriate
  • Implementing policies and practices for social distancing in the workplace
  • Improving the building ventilation system

Register Now! Complimentary Webcast: Not Approved For A PPP Loan? What Now?

Your company was not approved for a Paycheck Protection Program (PPP) loan but the bills are still due. There may still be some opportunities available under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to help keep your company on its feet.

Join labor and employment attorney Kelly Haab-Tallitsch and corporate and banking attorney Andrew Podgorny on Thursday, May 14, 2020 at 1PM CT as they discuss:

  • Employee Retention Tax Credit
  • Payroll Tax Deferral
  • Economic Injury Disaster Loans
  • Tax Credits for Paid Sick Leave and Expanded FMLA​

We hope you can join us for this timely webcast!

Benefit Plan Deadlines Extended – COBRA, Special Enrollment, Plan Disclosures and More

Contributed by Kelly Haab-Tallitsch, May 11, 2020

hand holding megaphone – benefits

On April 29, 2020, the Department of Labor (DOL) and the Treasury Department issued guidance extending certain timeframes related to employee benefit plans due to the COVID-19 outbreak. The agencies acknowledge that plan sponsors, participants and beneficiaries may have difficulty meeting the standard timeframes due to the national emergency and the extensions are intended to help maintain group health plan coverage.

Relief for Participants and Beneficiaries

A joint final rule issued by the DOL and Treasury provides that all group health plans, disability plans, other employee welfare benefit plans subject to the Employee Retirement Income Security Act (ERISA) must disregard the period from March 1, 2020 until 60 days after the COVID-19 National Emergency ends (or such other date as the agencies announce), referred to as the “Outbreak Period,” in determining certain notice and payment deadlines.  

This includes:

  • The 60-day COBRA election period;
  • Due dates for making COBRA premium payments; 
  • The 30-day (or 60-day as applicable) HIPAA special enrollment period;
  • The 60-day period for participants to notify a plan of a COBRA qualifying event (e.g. divorce); and
  • The deadlines for filing a claim for benefits, an appeal, or a request for an external review of a denied claim.

The final rule provides examples of how these extensions work in practice, based on the assumption that the National Emergency ended on April 30, with the Outbreak Period ending on June 29 (60 days after the end of the National Emergency).

  • Electing COBRA – Individual A experiences a qualifying event for COBRA purposes as a result of a reduction of hours below the hours necessary to meet the group health plan’s eligibility requirements. Individual A is provided a COBRA election notice on April 1, 2020. The Outbreak Period is disregarded for purposes of determining Individual A’s COBRA election period. The last day of Individual A’s COBRA election period is 60 days after June 29, 2020, which would be August 28, 2020.
  • Special Enrollment – On March 31, 2020, Individual B gave birth and would like to enroll herself and the child into her employer’s plan; however, open enrollment does not begin until November 15. The Outbreak Period is disregarded for purposes of determining Individual B’s special enrollment period. Individual B may exercise her special enrollment rights for herself and her child into her employer’s plan until 30 days after June 29, 2020, which is July 29, 2020. 
  • COBRA Premium Payments – On March 1, 2020, Individual C was receiving COBRA continuation coverage under a group health plan. Monthly premium payments are due by the first of the month. Individual C made a timely February payment, but did not make the March payment or any subsequent payments during the Outbreak Period. As of July 1, Individual C has made no premium payments for March, April, May, or June. Does Individual C lose COBRA coverage, and if so for which month(s)? Under the terms of the COBRA statute, premium payments are timely if made within 30 days from the date they are first due. In calculating the 30-day period, however, the Outbreak Period is disregarded, and payments for March, April, May, and June are all deemed to be timely if they are made within 30 days after the end of the Outbreak Period. Accordingly, premium payments for four months (i.e., March, April, May, and June) are all due by July 29, 2020. Individual C is entitled to COBRA continuation coverage for these months if she timely makes payment. Individual C is eligible to receive coverage under the terms of the plan during this interim period even though some or all of Individual C’s premium payments may not be received until July 29, 2020.

Relief for Plan Sponsors

The joint final rule also states the Outbreak Period shall be disregarded when determining the date for providing a COBRA election notice. This provides additional time (if needed) for employers to notify qualified beneficiaries of their rights to elect COBRA continuation coverage.

Additionally, the DOL’s Employee Benefits Security Administration (EBSA) issued EBSA Disaster Relief Notice 2020-01 allowing additional time for plan sponsors to furnish benefit statements, annual funding notices, and other required notices and disclosures required under the Employee Retirement Income Security Act (ERISA). The notice provides that an employee benefit plan will not violate ERISA for a failure to timely distribute a notice, disclosure, or document due during the Outbreak Period, as long as the plan and responsible fiduciary act in good faith and furnish the notice, disclosure, or document as soon as administratively practicable under the circumstances. This includes Summary Plan Descriptions, Summaries of Material Modifications, benefit determinations, annual funding notices, periodic benefit statements, summary annual reports, participant fee disclosures, QDIA notices, and blackout notices.

ADA Implications: I Don’t Want to Wear a Mask….

Contributed by Michael Wong, May 8, 2020

Blue medical face masks isolated on white background

During the COVID-19 pandemic we have seen multiple shifts in views by the public and employees.  Initially, the issue was what to do if an employee requested a face mask. 

However, businesses are now facing different questions:

  1. Can you require employees to wear a face mask? 
  2. Can you require customers or members of the public to wear a face mask when coming into your business?

What most do not realize is that both of these questions raise potential ADA issues.

EMPLOYEESThe short answer is, YES.  A business can require its employees to wear a face mask or covering and other personal protective equipment (PPE) as a workplace rule. In order to do so, the business would want to be able to show a legitimate business reason as to why the rule is in place. Under the current circumstances, requiring the use of a mask and PPE to address safety concerns related to the COVID-19 pandemic would likely be considered a legitimate business reason. In fact, some employers are being ordered to make it a requirement pursuant to local or state mandates.

However, what if an employee reports that he or she has a medical condition that makes it so he or she cannot wear a face mask or covering? This would then trigger the business’ obligation to engage in the ADA interactive process.

In going through the interactive process, the business may send the employee home pending completion of the interactive process. As part of the interactive process, the employer may request additional information and medical documentation from the employee regarding his or her medical condition and restriction of being unable to wear a face mask or covering.  

After receiving the additional information and medical documentation from the employee, the business would have to evaluate whether the employee requires a reasonable accommodation, and if so, what reasonable accommodation works best for the business. For example, if the employee provides a legitimate medical reason for not being able to wear a face mask or covering, reasonable accommodations could include the following:

  • Providing the employee an unpaid leave of absence until face masks or covering are no longer required at work;
  • Allowing the employee to work remotely; or
  • Providing an alternative face mask or covering that is allowed by the employee’s medical condition.

In cases that have addressed a business’ requirement that an employee wear PPE and an employee’s objection based on a disability, courts have ruled it is not an ADA violation for an employer to require an employee to wear PPE to address a safety hazard as part of an essential function of the job/position, where the business is addressing a safety concern.

It should be noted that any unpaid leave of absence based upon the employee’s inability to wear the face mask would likely not be covered by the FFCRA and so the employee likely would not be eligible for Paid Sick Leave or Emergency Paid FMLA leave. However, that is something that should be reviewed carefully, as they may qualify under certain circumstances.

CUSTOMERS/PUBLIC – Many states have issued executive orders requiring the public and businesses to require the use of face masks. However, almost all have an exception for individuals under certain ages and when a medical condition impacts the individual’s ability to wear a mask. For example, Illinois’ executive order states that “an individual who is over age two and able to medically tolerate a face-covering (a mask or cloth face-covering)” must wear a face covering when in public indoor spaces, such as stores.

So what can a business do if a customer says that he or she cannot wear a face mask and, possibly go so far as to allege that requiring one is a violation of the ADA for the business to refuse to allow him/her in? Unfortunately, there is no simple answer.

First and foremost, it is important to remember that this implicates the ADA. Unlike with employees, businesses are very limited in what questions and/or documentation they can ask the customer to provide regarding a disability under the ADA. For example, when dealing with a customer who brings a dog into a business, under the ADA a business is limited to asking two questions:

  • Is the dog a service animal required because of a disability?; and
  • What work or task has the dog been trained to perform?

Businesses are not allowed to inquire as to the nature of the person’s disability, request documentation of the dog being a service animal, or require that the dog demonstrate its task.

With regard to masks, generally the ADA prohibits places of public accommodation having restrictions that would limit access to an individual with a disability. However, the ADA does allow restrictions when an individual would pose a direct threat to the health or safety of others.

As of March 2020, the EEOC has declared that the COVID-19 pandemic meets the direct threat standard, based on guidance from the CDC and public health authorities regarding the risk of community spread and institution of restrictions. IMPORTANT – This standard may change and so businesses must stay up-to-date.

Since the COVID-19 pandemic is currently considered a direct threat by the EEOC, a business would likely be on solid ground to require customers to wear face masks or covering when entering into their premises. That said, a business would not have the absolute right to refuse to provide a customer service based upon the customer’s refusal to wear a mask.  When faced with a customer who is refusing to wear a face mask or covering, businesses should likely limit any questions to the following:

  • Are you unable to wear a mask because of a disability?

If the answer is “Yes,” then instead of additional questions regarding the disability or demanding documentation, the business should consider moving to engaging the customer in an interactive process to determine possible alternative methods of service that would allow the business to keep its employees and other customers safe, while still providing service/goods to the customer.

In order to address these issues, we recommend providing information, action plans and training to managers, supervisors and employees on how to address these situations and avoid heated confrontations and/or potential litigation. Of course, involving legal counsel in reviewing or putting together your training, documents and action plans will further help limit potential legal problems and costly litigation down the road.

Must Employers Pay for Employee’s Temperature Screens in Light of COVID-19? Wage and Hour Laws May Impact Employer Safety Procedures

Contributed by Sara Zorich, May 5, 2020

Hand putting card in time clock

While some states are beginning to loosen their stay at home orders, others continue to only be open for essential business. On April 10th we reported on the relaxation of the CDC guidance for safety practices for essential workers. This included advice from the CDC that critical infrastructure workers may be permitted to continue to work, or return to work, following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented by the employer including pre-screening employee’s temperatures prior to starting work.

We have seen a major uptick in employers performing temperature testing on employees prior to employees starting work which most likely is prior to an employee clocking in. Thus, many employers are asking if this time is compensable under federal and state wage and hour laws. The answer – under federal law most likely not but under state wage and hour laws it depends.

Federal Law

In Integrity Staffing Solutions, Inc. v. Busk, 135 S.Ct. 513, 517, 190 L.Ed.2d 410 (2014), the US Supreme Court held that the 25 minutes plaintiff warehouse employees spent waiting for and undergoing security screenings at the end of their shifts was not compensable under the Fair Labor Standards Act (FLSA). The Supreme Court held that it was not compensable because the employer “did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.” Based on Integrity, employee temperature tests are most likely not compensable under the FLSA.

State Law

Many states, however, have their own wage and hour laws which can be more stringent and have different definitions for “hours worked” than that of the FLSA.  Further, states laws like Illinois, can have significant damages for violation of wage and hour laws including interest payments, treble damages and payment of attorney’s fees.  Whether a company needs to compensate employees for temperature checks or increased safety protocols occurring prior to or after the work day will need to be analyzed on a case-by-case basis.  However, in general, Missouri and Indiana probably would not require compensation of the time as their state laws look to federal interpretation but most likely the time would be compensable under Illinois and Wisconsin wage and hour laws.

Employers who are requiring temperature checks (and other safety protocols) must review their practices for the testing, requirements of employees, time taken to perform testing and if the employees are required to wait in line for the test to be performed. These factors (along with state laws) will impact the compensability of the time. 

What if a Laid Off Worker Refuses to Return to Work under the PPP?

Contributed by Carlos Arévalo, May 5, 2020

3d human character a question mark

A couple of weeks ago, we examined two general factors that the Treasury will be examining to determine PPP loan forgiveness, namely whether at least 75% of the borrowed funds have been spent on “payroll costs” and whether employers maintained the same headcount and salary levels for full-time equivalent (FTE) employees.

On Sunday May 3rd, the Treasury issued additional guidance regarding the impact of layoffs on the headcount calculation for purposes of loan forgiveness. Specifically, FAQ #40 asked whether a borrower’s PPP loan forgiveness amount would be reduced if the borrower laid off an employee, subsequently offered to rehire the same employee, but the employee declined the offer. The Treasury’s answer reads in part as follows:

…SBA and Treasury intend to issue an interim final rule excluding laid-off employees whom the borrower offered to rehire (for the same salary/wages and same number of hours) from the CARES Act’s loan forgiveness reduction calculation. The interim final rule will specify that, to qualify for this exception, the borrower must have made a good faith, written offer of rehire, and the employee’s rejection of that offer must be documented by the borrower. Employees and employers should be aware that employees who reject offers of re-employment may forfeit eligibility for continued unemployment compensation.

Based on the Treasury’s answer, there should be no adverse impact on a business “headcount” for purposes of loan forgiveness even where the business initially laid off a worker, but then extended the worker a WRITTEN offer to return and the worker rejected the offer. However, the business should keep a record of the worker’s rejection of the offer just like other PPP loan related documentation, i.e. payroll tax filings, cancelled checks, payment receipts, etc.

It should also be noted that, while not required, the written offer should include a statement that if the worker chooses not to return to work after the offer is made, doing so may, under some circumstances, be deemed a voluntary resignation potentially disqualifying the worker from continued unemployment benefits.   

NOTE: This is general information and should not be construed as legal advice. New guidance is continually being published. This information is only current through May 3, 2020.

UPDATE: Governor Pritzker’s Latest Executive Order Requires Employers with Employees On-Site to Post IDPH Workplace Safety Guidance

Contributed by John Hayes, May 1, 2020

hand writing work safety with black marker

In an update to our previous blog on Illinois extending its stay-at-home order through May 30, 2020, Governor Pritzker’s latest Executive Order on COVID-19 (Executive Order No. 2020-32), issued April 30, 2020, mandates that all businesses that have employees physically reporting to a work-site must post the guidance from the Illinois Department of Public Health (IDPH) regarding workplace safety during the COVID-19 emergency. 

The guidance is found on the IDPH website, and informs employees that their employer should:

  • Make sure that employees can maintain at least 6 feet of physical separation between themselves and others around them, including co-workers and customers.
  • Mark with signage or tape 6-foot spacing for employees and customers to maintain appropriate distance from one another.
  • Provide face coverings to employees, especially when it is not possible to maintain at least 6 feet of space between you and another person.
  • Provide handwashing stations with soap, clean water, and single use paper towels and encourage frequent handwashing for 20 seconds or longer.
  • Provide hand sanitizer (with at least 60% alcohol) and sanitizing products for employees and customers.
  • Regularly clean high-touch surfaces including doorknobs, light switches, shared equipment, toilet handles, sink faucets, and clock in/out areas.

The guidance also tells employees not to report to work if they are experiencing symptoms of COVID-19 including fever (100.4° or above), cough, shortness of breath, sore throat, chest tightness, extreme fatigue, loss of sense of taste or smell, diarrhea, muscle aches, or headaches.

Additionally, the poster informs the employee that if they have concerns that their employer is not allowing for safe social distancing or that it is not maintaining a safe and sanitary work environment to minimize the risk of spread of COVID-19, to contact the Illinois Attorney General’s Office.  It also informs employees that if they believe that two or more employees at their workplace have COVID-19, to notify their local public health department.

While most of the health and safety information contained in the IDPH guidance is not new, the requirement to post it is, along with encouraging employees to report suspected violations of the guidance by their employer. Employers with employees physically reporting to their work-site should be aware of the IDPH guidance and make every effort to comply with the Executive Order and post the guidance in their place of business as soon as possible. Because there is no “one size fits all” approach with COVID-19, employers must pay careful attention to all local and state guidelines and mandates unique to their geographic footprint.

What to do When Your Employee Tests Positive for COVID-19

Contributed by John Hayes, April 30, 2020

clip board and stethoscope conceptual illustration

With the constantly shifting state and local stay-at-home orders and the potential relaxing of these orders on the horizon, the question for employers still remains: What do we do if an employee has COVID-19? 

Once an employer receives a report that an employee has tested positive for or is presumed to have COVID-19, the employer should do the following:

  • Instruct the infected employee to stay home for the longer of the period of time recommended by his or her health care provider or the applicable health department or until 1) at least 3 days (72 hours) have passed since resolution of fever without the use of fever-reducing medications AND improvement in respiratory symptoms (e.g., cough, shortness of breath); and 2) at least 7 days have passed since symptoms first appeared. Employers may not disclose the identity of the employee diagnosed with or presumed to have COVID-19. Employers are also required to maintain the privacy of any health information they gather related to an employee’s medical condition or their symptoms, and any such documentation should be kept in a private health folder, separate from the employee’s personnel file, with limited access by only critical human resource staff.
  • Interview the infected employee to determine all co-workers, clients, vendors, or guests with whom the employee may have come into close contact during the 14-day period prior to the positive test or presumption of being positive for COVID-19 (the “Incubation Period”). “Close contact” means being within six feet of the sick employee for a prolonged period (10-30 minutes). The employee should also be asked to identify all areas within the workplace where he or she was physically present during the past 14 days and any employees with whom he or she shared a workspace or equipment. (The local health department may conduct this interview and provide the employer with this information.)
  • Contact directly each close contact and each co-worker who shared a workspace with the sick employee and advise that a person with whom they have been in recent contact and/or with whom they recently shared a common work area has been diagnosed with COVID-19. Instruct them that they are to remain out of the office for at least 14 days since the last contact with the infected employee and to work remotely, if possible. The co-workers should be encouraged to self-isolate and seek all medical care and testing that they feel may be appropriate. (The local health department may order the employees to be off work and inform the employer that it has done so.) It should also be noted that pursuant to recent CDC guidelines, under certain circumstances, an employer may allow an employee who is asymptomatic but was exposed to return to work.
  • Consider notifying clients, vendors and/or guests who may have been exposed to the diagnosed employee, while maintaining confidentiality.
  • Consider the wage and hour issues, such as mandatory paid sick leave, if the infected employee and close contacts are not able to work remotely and communicate the pay policies to employees pursuant to the FFCRA. 
  • Consider issuing a general notice to the workforce that an employee has tested positive for or is presumed to have COVID-19 (without identifying the employee). Any such notice should reassure employees that, unless the employee has been notified directly by the employer, the employee is not believed to have been in close contact with or shared a common workspace with the infected employee. Employees should be told all the steps the employer is taking to ensure their safety and should be advised to monitor themselves for symptoms of COVID-19 and reminded not to come to work if they are sick.
  • Shut down those areas of the workplace identified by the infected employee as areas that he or she used until those areas can be cleaned in accordance with CDC guidelines.

While employers may require a doctor’s note permitting an employee to return to work after recovering from COVID-19 or being mandatorily quarantined, such a requirement may not be practical. Acceptable alternatives include relying on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have COVID-19.

State, federal, and local discrimination laws remain in place and apply to harassment related to COVID-19, which may take the form of race and national origin harassment. Employers should inform all employees that such harassment will not be tolerated.

Employers should take action immediately in response to an employee who reports a positive test for or a presumption of COVID-19. Employers should be flexible and efficient in order to maintain a safe workplace and allow the focus to be on the work of the company going forward. 

Why You Need to Pay Attention to How the Feds Are Approaching the Meat and Poultry Processing Industry

Contributed by Beverly Alfon, April 28, 2020

While most employers do not take issue with CDC and OSHA recommendations related to hand washing, sanitizing, personal protective equipment (PPE), or even employee screening – the  social distancing aspect of these guidelines often provoke the greatest resistance from manufacturing employers:  “We’re just not set up to operate that way.”

Over the last few weeks, we have all seen the headlines regarding Smithfield, JBS, and Tyson.  The meat processing plants have become alleged hot beds for COVID-19, leading to plant closures.  Last week, Smithfield workers sued the company alleging that the company “in direct contravention of CDC guidelines,” provides insufficient personal protective equipment, forces workers to work shoulder to shoulder, and schedules their working time and breaks in a manner that forces workers to be crowded into cramped hallways and restrooms. Last week, Tyson Foods also closed its Waterloo plant in the face of a significant COVID-19 outbreak among its workers and an OSHA complaint filed by Iowa lawmakers. According to a USA Today article  published a week ago, the outbreaks have caused the closure of 17 U.S. facilities, including a Smithfield pork plant in South Dakota that handles 5% of U.S pork production. 

In response, the CDC and OSHA issued joint agency guidance for Meat and Poultry Processing Workers and Employers on April 26.  The agencies identified “distinctive” factors that increase workers’ risk for exposure to COVID-19 in these workplaces:

  • Distance between workers – workers often work close to one another on processing lines. Workers may also be near one another at other times, such as when clocking in or out, during breaks, or in locker/changing rooms.
  • Duration of contact – workers often have prolonged closeness to coworkers (e.g., for 10-12 hours per shift). Continued contact with potentially infectious individuals increases the risk of SARS-CoV-2 transmission.
  • Type of contact –workers may be exposed to the infectious virus through respiratory droplets in the air – for example, when workers in the plant who have the virus cough or sneeze. It is also possible that exposure could occur from contact with contaminated surfaces or objects, such as tools, workstations, or break room tables. Shared spaces such as break rooms, locker rooms, and entrances/exits to the facility may contribute to their risk.
  • A common practice at some workplaces of sharing transportation such as ride-share vans or shuttle vehicles, car-pools, and public transportation
  • Frequent contact with fellow workers in community settings in areas where there is ongoing community transmission.

However, these factors do not appear to be so distinct to the meat and poultry processing industry. Some or many of these conditions likely exist in any number of manufacturing  operations. Notably, these factors are all focused on a lack of physical distance between workers.

The events occurring within the meat and poultry processing industry should be a cautionary tale to all manufacturing employers who recognize any of the above factors within their operations and workforce. While some of these recommendations may require herculean efforts during this time of overstretched resources, some consideration should be given to the potential costs of a COVID-19 outbreak among employees, OSHA investigation, production shutdown, and litigation aimed a enforcing these non-mandatory guidelines. 

Breaking news:  Just hours ago, President Trump indicated that he intends to use the Defense Production Act issue to order meat and poultry (and likely other types of food) processing plants to remain open as the country is starting to see food-supply disruptions from the COVID-19 outbreak. This comes on the heels of the declaration from Tyson Foods Chairman John Tyson that the U.S food supply chain “is breaking.”  President Trump has indicated that the executive order will “solve any liability problems,” so as to shield meat plants from legal liability if they are sued by employees who contract COVID-19 while on the job.  Media reports also indicate that the executive order will include provisions for additional protective gear for employees, guidance, and virus testing capacity. This is a developing matter and we will continue to monitor it.