Tag Archives: OSHA

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. 


Contributed by guest author Matt Horn, March 24, 2020

Our clients continue asking us the same two questions about COVID-19 as it pertains to their obligations under OSHA. We include those questions and our answers below:

1. What does OSHA expect me to do to prevent the spread of COVID-19 to my employees?

Answer:  OSHA has provided guidance on steps employers can take to prevent the spread of COVID-19 in the workplace. This guidance appears to relate largely to employers outside of the healthcare industry. Industry associations have also put out their own guidance, including the AGC. The AGC guidance provides practical, common-sense advice, including: 1) ensure people who are sick are kept from the site; 2) provide employees with clean, accessible facilities to go to the bathroom and wash their hands (with soap); 3) keep employees spread out; 4) do not require people to meet in large groups; 5) do not maintain a common water cooler or coffee station; and 6) clean and sanitize whenever and to the extent possible.

For those employers in the healthcare industry and others heavily impacted COVID-19, OSHA has also compiled a list of Standards that apply to COVID-19. The most obvious and important Standard relates to providing employees with the PPE necessary to protect them from exposure, including gloves, face and eye protection, and respiratory protection.

2. If one of my employees gets COVID-19, do I need to record or report it to OSHA?

Answer: OSHA has indicated that it will require employers to record and report employee COVID-19 cases in certain circumstances. Three factors must be met in order for an employee case of COVID-19 to apply: 1) an employee has a confirmed case of COVID-19; 2) the case is work-related; and 3) the case involves one or more of the general recording or reporting criteria (i.e. medical treatment beyond first aid, days away from work, hospitalization, death, etc.). As to the second prong, in order for a case to be work-related, the employee has to actually be infected at work—it is not enough that he/she contracts the disease outside of work and displays symptoms at work. 

Clearly, this obligation impacts the healthcare industry the most, since its employees are most likely to contract a confirmed case of COVID-19 at work; however, it has the ability to impact all employers. For those employers in the healthcare industry, it would seem that the best way to avoid this recording or reporting obligation is to provide employees with the necessary PPE as mandated by OSHA, and for those employers outside of the healthcare industry, it would seem that the best way to avoid this obligation is to ensure that employees who have COVID-19 are not allowed to work and infect others.

UPDATED 11/22/2017: Deadline to Electronically Submit OSHA Data

Contributed by Matthew Horn, November 21, 2017

BREAKING NEWS: In follow up to our blog from yesterday, OSHA issued a press release this morning extending the deadline to electronically report from 12/1 to 12/15. All other information in the blog remains unchanged.

On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release pushed back the compliance date four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.

Dec1Just over two weeks later, OSHA issued another press release announcing that it would be launching its website allowing employers to submit their injury and illness data on August 1, 2017. On August 1, 2017, OSHA made good on that promise and launched its website, which is linked here. To date, despite OSHA’s promise to review the Rule closely, it has taken no action to roll back or delay the electronic reporting requirements, so the December 1st deadline remains.

Under the Rule, virtually all employers with twenty or more employees are required to submit their completed Form 300A for 2016 by December 1, 2017. In 2018, employers with twenty or more employees must submit their completed Form 300A for 2017 by July 1, 2018, and those employers with more than 250 employees must submit their Form 300 and 301s by that deadline, as well.

While we were hoping OSHA would roll back or delay the Rule, it appears that is not going to happen. Accordingly, all applicable employers would be well-served submitting their data online no later than December 1st.

OSHA Charges Ahead With Electronic Report Rule

Contributed by Matthew Horn, August 2, 2017

Electronic Reporting File_2On June 27, 2017, OSHA issued a press release announcing that it would be delaying the compliance date for its Rule requiring most employers to electronically submit their injury and illness data to OSHA. The press release proposed pushing the compliance date back four months, from July 1, 2017 to December 1, 2017, so OSHA could review the Rule closely.

Just over two weeks later, OSHA issued another press release announcing that it would be launching its website allowing employers to submit their injury and illness data on August 1, 2017. On August 1, 2017, OSHA made good on that promise and launched its website, which is linked here.

Under the Rule, virtually all employers with twenty or more employees are required to submit their completed Form 300A for 2016 by December 1, 2017. In 2018, employers with twenty or more employees must submit their completed Form 300A for 2017 by July 1, 2018, and those employers with more than 250 employees must submit their Form 300 and 301s by that deadline, as well.

Notably, despite moving forward with the launch of its injury tracking website, OSHA has yet to address the “review” of the Rule it promised in its June 27, 2017 press release. Accordingly, employers would be well-served to wait to submit their 300A data until shortly before the December 1, 2017 deadline to see if OSHA changes course on the Rule before that deadline. Mark your calendars.

Three Needless Deaths: Recognize Confined Space Dangers on Your Job Sites

Contributed by Patrick M. Sanders, July 24, 2017

Construction Site

Supervisor using walkie-talkie at construction site

On July 14, 2017, the U.S. Department of Labor’s Occupational Safety and Health Administration cited a contractor for 10 serious violations after the deaths of three workers who succumbed to toxic gases in a manhole on January 16, 2017.

Preventable safety failures led to the deaths of Elway Gray, a 34-year-old pipe layer, who entered the manhole – a confined space – and quickly became unresponsive; Louis O’Keefe, a 49-year-old laborer, who entered the hole in an attempt to rescue Gray; and Robert Wilson, a 24-year-old equipment operator, who followed to rescue his two fallen coworkers. Two other employees and a firefighter were also exposed to the toxic gases during rescue attempts but survived.

Post-incident atmospheric testing of the confined space revealed lethal levels of carbon monoxide and hydrogen sulfide. OSHA investigators issued Douglas N. Higgins, Inc. and its related contracting company, serious citations, totaling $119,507, in penalties.

The incident-related serious violations included failure to:

  • Purge or ventilate the confined space before entry;
  • Prevent workers from exposure to an asphyxiation hazard;
  • Provide necessary rescue and emergency equipment for employees that were overcome inside a permit-required confined space;
  • Develop and implement a written hazard communication program for a worksite on which employees were exposed to dangerous chemicals and gases;
  • Use a calibrated direct-reading device to test for toxic gases, creating an asphyxiation hazard;
  • Create and document the confined space entry permit;
  • Provide training to employees in the safe performance of their assigned duties in permit-required confined spaces; and
  • Provide a guardra­­­il around the manhole opening, exposing employees to a fall hazard.

Full citations may be found here.

OSHA Area Director Condell Eastmond’s comments were all too familiar: “Three employees needlessly lost their lives and others were injured due to their employer’s failure to follow safe work practices.”

This case should remind all employers that confined spaces within the workplace often present difficult and involved identification, training, written program management and compliance documentation retention issues.

What responsibility do companies have to ensure that their contractors protect their workers?

Those organizations that have a record of previous “serious” violations must be aware OSHA will rigorously enforce employee training, workplace safety information requirements, toxic workplace condition testing and all related rescue and emergency safety equipment regulations and will issue repeat, willful and, in extreme cases, criminal violations, should subsequent violations be documented by OSHA.


Contributed by Jonathan Hoag, October 18, 2016

As we previously reported, OSHA postponed enforcement of its controversial post-accident drug testing rule from August 10, 2016 to November 1, 2016.  Now, with the November 1, 2016 deadline approaching, OSHA has extended its stay on enforcing the post-drug testing rule until December 1, 2016.

OSHA initially delayed enforcement of the rule until November 1, 2016 because a lawsuit was filed in July 2016 by numerous parties seeking injunctive relief to prevent enforcement of the rule. OSHA agreed to postpone enforcement of the rule to allow the parties to brief the legal issues presented in the lawsuit. The legal briefing was completed in September 2016.  While the Judge was reviewing the case to determine if OSHA should be enjoined from enforcing its rule, OSHA claimed that the plaintiffs were only seeking injunctive relief on behalf of the parties to the lawsuit and not on a national basis.

On October 14, 2016, the Judge determined that the parties should further brief the issue as to whether the injunction sought was only on behalf of the parties to the lawsuit or if it would apply nationwide. The Judge requested that OSHA delay enforcement of the rule until December 1, 2016 to allow time for a decision on the pending lawsuit. Today, OSHA informed the court that it has agreed to a further delay and it has advised all regions of the decision to delay enforcement until December 1, 2016. The court intends to make a determination on the request for an injunction prior to the December 1, 2016 deadline. If an injunction is entered, the court will also decide if it prohibits enforcement nationwide or only with respect to the parties.

Employers should continue with preparations to comply with OSHA’s new rule. For more in depth coverage, join us for a webinar on this topic on October 19, 2016 from 10:30 a.m. – 12:00 p.m. or for an in-person seminar in Effingham, Illinois on October 20, 2016.


OSHA – Now Doing Editorials​

Contributed by Matthew Horn

On July 22, 2015, OSHA issued an underground construction company in Texas six willful and nine serious citations with fines totaling $423,900, stemming from a trench collapse in February of 2015. While the citations and fine amount are not unusual under the new regime, the press release issued by OSHA following the issuance of the citations goes to great lengths to embarrass and harass the company, even identifying the company’s workers compensation insurer by name—presumably, in an atteyellow construction hatmpt to try and prevent the company from obtaining insurance in the future. See the press release here.

Going forward, employers should know that in addition to citations and fines, OSHA intends to add malicious press releases and editorials to its arsenal. Now more than ever, employers should take steps to ensure that they are prepared for when OSHA arrives at their facility or site in an effort to avoid being the subject of a similar press release.

OSHA Revises Whistleblower Manual to Clarify Issues Related to Remedies and Settlement of Whistleblower Claims

Contributed by Jonathan Hoag

OSHA continues to focus enforcement efforts on whistleblower/retaliation claims.  Whistleblower claims have been on the rise and this trend is expected to continue for the coming years.  OSHA recently updated its Whistleblower Investigations Manual to offer clarity to remedies and settlements when handling a whistleblower claim under the Act.

The revised manual states that in some cases OSHA may issue a preliminary reinstatement and employers must make a bona fide job offer upon receipt of such findings.  This would be a bold order, but it might be used with greater frequency as OSHA continues to step-up enforcement of retaliation claims.  In addition, the manual now contains a section explaining that emotional distress/mental anguish, pain and suffering can be part of compensatory damages awarded under the OSHA whistleblower provisions.  Of particular concern is that OSHA expressly states that it may rely solely on a complainant’s own statement to prove objective manifestations of distress and statements by health care professions are not required.

whistleThe whistleblower manual now includes detailed guidance as to when punitive damages should be awarded in whistleblower cases.  OSHA will likely consider punitive damages in cases when a management official knew his/her action violated the whistleblower statute or had reason to believe action was unlawful but did not act to stop or prevent the conduct.  OSHA will focus on statements made by company officials, the amount of whistleblower training provided to staff, prior complaints about retaliation, and the company’s policies and manuals.  OSHA expressly acknowledges that punitive damages are likely not appropriate if the employer has a good faith defense, such as an effectively-enforced policy against retaliation.  Employers should review current policies and handbooks to be sure it is clearly communicated that retaliation is not tolerated and that there are no obstacles for employees in reporting complaints to OSHA (i.e. employees are not required to first report concerns to management before going to OSHA).

OSHA continues to recognize the value in settling matters, including whistleblower claims, as opposed to litigating the claims.  OSHA investigators are required to adhere to specific requirements when discussing settlement and employers should expect OSHA to seek 100% relief in order to settle (although full relief is not an absolute requirement for settlement).  If a private settlement is reached and not submitted to OSHA (or if not approved by OSHA), the complaint may still be dismissed.  However, if OSHA’s investigation has gathered enough information to establish a violation or if OSHA determines it needs to protect other employees, OSHA may issue merit findings.

Based on the revised guidance issued by OSHA, employers can provide substantial protection from damages, including punitive damages, by updating policies and handbooks to strictly prohibit retaliation.  In addition, all employers should provide regular training to employees (especially supervisors) about the rights of whistleblowers and the company’s zero tolerance policy on retaliation.  These simple steps will go a long way in avoiding liability and damages for whistleblower claims.


OSHA Emphasizes Whistleblower Protection for Temporary Workers

Contributed by Jonathon Hoag

Last month OSHA published another bulletin as part of its series for providing guidance on safety and health compliance with respect to temporary workers.  This particular bulletin reiterated OSHA’s position that temporary employees have the same rights and protections as all other covered employees, including protection against retaliation for engaging in protected activity.  OSHA stressed that a temporary employee who believes he or she is retaliated against for reporting injuries, participating in OSHA inspection, raising safety concerns or complaints, or engaging in any other conduct protected by the act may file a complaint with OSHA against the host employer, staffing agency, or both.

OSHA has been expressly targeting enforcement efforts related to temporary workers and separately ramping up whistleblower protections.  This recent bulletin merges these two initiatives and sends a cautionary reminder to employers that use of temporary staff will not shield it from potential whistleblower liability under OSHA.  As the bulletin states, a simple request from the host company to remove or replace a temporary worker can put both the host employer and staffing agency on the hook for a retaliation claim if the employee alleges he or she engaged in protected activity before being removed – this is true even if the staffing agency places the worker at another location.  Retaliation claims of all types continue to rise and this is yet another area where employers that host temporary workers must proceed with caution.

OSHA is expected to continue issuing bulletins and guidance related to host employer and staffing agency responsibilities for compliance with safety and health compliance.  OSHA’s temporary worker initiative is updated periodically and is located at:  https://www.osha.gov/temp_workers/.

Take Down the Christmas Lights and Post Your OSHA Form 300A

Contributed by Julie Proscia

It’s January and you know what that means….it’s time to take down your Christmas lights and get your OSHA Form 300A ready for the February 1, 2015 deadline. Oh, the fun never ends! Every year we receive numerous inquiries regarding requirements under the OSHA Form 300A, and this year is no exception – except it is an exception.  As of January 1, 2015, some of the industries that were exempt from this requirement have changed.

Prior to the change, the list of exempted industries was based on the Standard Industrial Classification (SIC) system.  As of January 1, 2015, the list is based on the North American Industry Classification System (NAICS).  The following is a link to the new list of exempted industries: https://www.osha.gov/recordkeeping2014/reporting_industries.html

Industries that are no longer on the exempted list are NOT required to post on February 1, 2015 (as this is the summary of the previous year), but will be required to track 2015 data for posting in 2016. While the industry exemption list has changed, employers with 10 or fewer employees are still exempt from the posting requirement. As such, all non-exempt employers with more than 10 employees must still post the form.  So how do you count the 10 employees?

Under the federal regulations, an individual is counted as an employee for purposes of OSHA Form 300 if the employee is on a company’s payroll, regardless of whether the employee is “labor, executive, hourly, salary, part-time, seasonal, or migrant.”  29 C.F.R. 1904.31(a).  A company must also count individuals who are not on the company’s payroll, including employees from a temporary/staffing/leasing agency and the employees of a contractor, if the company supervises those individuals on a day-to-day basis.  Id. at 1904.31(a), 1904.31(b)(2) and (3).  However, self-employed individuals are not covered.  Id. at 1904.31(b)(1).  If a company had 11 or more employees at any time during the last calendar year, the company must comply with the recordkeeping requirements.

So now that you know if you need to comply, what is the OSHA Form 300A anyways? Form 300 is the Occupational Safety and Health Administration (OSHA) injury log.  Form 300A is the summary of the same. Form 300A reports an employer’s total number of deaths, missed work days, job transfers or restrictions, and injuries and illnesses as recorded on Form 300 for the previous year. Form 300A also includes the number of workers and the hours they worked for the year. Downloadable forms can be found on the United States Department of Labor’s website at: https://www.osha.gov/recordkeeping/RKforms.html

Employers are only required to post the Form 300A summary, not the full log.  However, the full log must be available for inspection by employees, their representatives or OSHA investigators upon request. Generally, a full copy of the log is kept with the compliance office, safety officer or human resources. Employers with multiple job sites should keep a separate log and summary for each location that is expected to be operational for at least a year.

In November, the Department of Labor (DOL) announced its current rulemaking activity and OSHA topped the list with the most rulemaking activity within the DOL. As such, 2015 is projected to be a year rife with OSHA inspections and audits. Making sure that you are up to date with your log is one way to ensure compliance and reduce headaches.