COVID-19 is a health crisis in the United States but major industries, like agriculture, chemical manufacturing, oil and gas exploration and production, all need to keep functioning as essential businesses in the midst of the crisis. The response to COVID-19 has core parallels to major industrial accident response, which involves deploying the right resources for the task. Every incident, be it a fire, explosion, or a government inspection and citation for regulatory compliance failures involves four key elements of response: (1) the immediate response; (2) the extended response; (3) compliance and prevention; and (4) preparedness/lessons learned to improve. This lifecycle of an incident applies equally to a COVID-19 contact among your employees or customers. Make no mistake. The stakes are high. Recently, Cal/OSHA issued COVID-19 related citations to two companies of over $200,000 each, one to a frozen food manufacturer and the other to a temporary employment agency. New legislation that becomes effective next year gives Cal/OSHA expanded authority to issue Orders Prohibiting Use for workplaces that pose risk of an “imminent hazard” relating to COVID-19. In other words, they can shut your plant down if you don’t have the right procedures in place to respond to a COVID-19 incident.
Processing plant managers are accustomed to incidents, such as injuries, agency inspections, or citations (hopefully not too frequently with respect to citations); applying the process in the context of COVID-19 can work extremely well, even where handling these situations requires adjustment for the particular crisis at hand. In every crisis, the approach needs to be tailored, and COVID-19 incidents are no different.
Examples of how a COVID-19 response needs to be tailored include determining work-relatedness to a positive test to COVID-19, identifying close contacts, identifying the agencies to whom notifications must be provided, and contact tracing for potentially exposed employees, testing, and implementing isolation protocols. In the context of COVID-19, agriculture companies need to be keenly aware of increased Cal/OSHA oversight, as the agency has identified agricultural processing as a priority for enforcement because agricultural processing facility workers have been disproportionately impacted.
When confronting a COVID-19 incident, follow these useful tips to help minimize liability and potential for citation by the government.
- Familiarize yourself with the Extensive Government Guidance Issued, Especially that Tailored to Your Industry
There’s a saying in incident response: your greatest exposure is not the incident itself but whether you follow the regulations for reporting and responding to the incident. That’s true for a major chemical release from your operations and a COVID-19 incident, alike. When the crisis emerged, several federal and state agencies provided guidance documents to companies on how to address potential cases of COVID-19. Like the crisis, the guidance is evolving. The government continues to update its approach and has even offered tailored to specific industries. Following the agency guidance will put a facility in a much stronger compliance position when faced with a compliance inspection or determination of work-relatedness.
Some key recent government guidance specific to the agricultural processing industry is listed below:
- September 18, 2020, California Department of Public Health (CDPH) updated Guidelines intended for use by employers experiencing an outbreak of COVID-19 in their workplace. It emphasizes that employers should be proactive and keep in mind that identification of even a single positive case among employees may quickly develop into an outbreak.
- July 29, 2020, California COVID-19 Guidance for the agriculture and livestock industry to support a safe, clean environment for workers. Recommendations include that an employer investigate any COVID-19 illness and determine if any work-related factors could have contributed to risk of infection; identify close contacts (within six feet for fifteen minutes or more) of an infected worker and take steps to isolate COVID-19 positive worker(s) and close contacts; implement the necessary processes and protocols when a workplace has an outbreak, in accordance with the CDPH guidelines.
- July 21, 2020, Cal/OSHA updated Guidance for the agriculture industry. This provides:
- COVID-19 Daily Checklist for Agricultural Employers
- COVID-19 General Checklist for Agricultural Employers
- Infection Prevention for Agricultural Employees and Employers
- Make Required Government Notifications
Understand requirements for reporting employee cases to Cal/OSHA. Any serious injury, illness, or death occurring in any place of employment or in connection with any employment must be reported by the employer to the local Cal/OSHA district office immediately. For COVID-19, this includes inpatient hospitalizations and deaths among employees.
On September 17, 2020, Governor Newsom also signed into law AB 685 which enhances reporting requirements to local health authorities in the event of a COVID-19 outbreak in the worksite. The law takes effect on January 1, 2021.
Employers should also check local guidance to determine if there are other investigation, reporting, or recording obligations triggered by a positive COVID-19 case.
Finally, recognize that if an employee is out with COVID-19 or quarantined, other government obligations, like environmental reporting may fall by the wayside in their absence. Develop a plan to ensure your ongoing government reporting obligations are being met, even those not COVID-19-related. Having an employee out due to COVID-19 is likely not going to serve as an acceptable excuse for environmental noncompliance.
- Do the Investigation
To comply with Cal/OSHA requirements, plant managers should ensure their companies are investigating positive COVID-19 determinations in a timely manner to identify any work-related factors and to identify close contacts. This will protect employees, comply with Cal/OSHA requirements, and provide information that may be needed to in regards to the “disputable presumption” that exists in California for an employee who suffers illness or death resulting from COVID-19 on or after July 6, 2020 through January 1, 2023.
COVID-19 related citations recently issued by Cal/OSHA included a failure to investigate about 20 COVID-19 illnesses and one death for a food manufacturer. Cal/OSHA’s news release highlighted that Cal/OSHA created guidance for many industries in multiple languages including videos, daily checklists and detailed guidelines on how to protect workers from the virus. This guidance is meant to provide a roadmap for employers on their existing obligations to protect workers from COVID-19. If you don’t conduct required investigations, you will be placing your company at risk of being shut down through Cal/OSHA’s expanded authority to issue Orders Prohibiting Use for workplaces that pose a risks of an “imminent hazard” relating to COVID-19.
- Meet Requirements for Identifying and Notifying Potentially Affected Employees
As part of the investigation, additional employee cases and close contacts (within six feet for fifteen minutes or more) should be identified in accordance with the regulations and guidance. The facility will then need to conduct testing or alternative methods (e.g., contact tracing or quarantining) in consultation with the local health department to control the outbreak.
All potentially exposed employees must be notified and employers must meet obligations regarding confidentiality of employees with suspected or confirmed COVID-19 infection as required by the Americans with Disabilities Act (“ADA”) and Health Insurance Portability and Accountability Act (“HIPAA”).
- Review and Update the Facility COVID-19 Plan to Apply Lessons Learned and Improve
In the July 29, 2020 COVID-19 Guidance for agriculture and livestock, the state of California recommended that each facility establish a written, workplace-specific COVID-19 prevention plan, perform a comprehensive risk assessment of all work areas and work tasks, and designate a person at each facility to implement the plan. The plan should include sanitation practices, physical distancing, individual control measures, screening, and other incidental practices to prevent the spread amongst workers. Upon completion of the incident investigation, the facility should update the plan as needed to prevent further cases.
COVID-19 presents unique challenges to processing plant managers responding to incidents because of the difficulty in determining the source of infection, agency notification and attention, contact tracing, employee notification, testing, control measures, and return to work. Like any incident, COVID-19 incident response should focus on: (1) the immediate response by making required agency notifications and dealing with the immediate employee concerns including contact tracing; (2) the extended response by conducting an incident investigation; (3) compliance and prevention by conducting testing or implement isolation protocols; and (4) preparedness/lessons learned to improve by reviewing and updating the facility COVID-19 plan. Processing plant managers who work quickly and diligently to respond to a COVID-19 incident will reap the benefit of minimizing regulatory scrutiny protecting employees and comply with legal reporting and notification requirements. They should also regularly check local, state, and federal guidance to determine if there are new or revised investigation, reporting, or recording obligations triggered by a positive COVID-19. – By Daniel J. Grucza & Shannon S. Broome
Dan Grucza is Counsel with Hunton Andrews Kurth LLP. He regularly advises companies on health and safety issues and has been a speaker and author on COVID-19 response issues and is a lead member of the firm’s incident response practice.
Shannon S. Broome is the Managing Partner of Hunton Andrews Kurth’s San Francisco office and leads its environmental practice in California. She routinely advises clients on Cal/OSHA compliance issues and on major accident and other incident response for industrial facilities.