Jun 9, 2020

Legal alert eyes guidance for ag employers during COVID-19

The CDC and the U.S. Department of Labor recently released interim guidance for all agriculture employers to provide an action template to protect agriculture workers from COVID-19.

Atlanta,, Georgia-based law firm Fisher Phillips has issued an extensive legal alert on the guidance that provides the details. This Legal Alert provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

Primarily, the guidance addresses exposure risk to agriculture workers, and encourages employers to develop a COVID-19 assessment and control plan to protect themselves and farmworkers, in accordance with the CDC Interim Business Guidance for Businesses and Employees and General Business Frequently Asked Questions.

Regional, site and job specific control plans

Under the interim guidance, control plans should be tailored to the specific region, work site space, job tasks, and other features of each agricultural operation and location. Plans should identify a designated qualified workplace coordinator responsible for COVID-19 assessment and control planning.

This coordinator should handle concerns confidentially and should have a means to communicate in the preferred languages spoken or read by the workers, if possible. The coordinator should also provide materials at the appropriate literacy level, including providing workers with contact information about where to get COVID-19 testing. The guidance recommends that employers should perform work site assessments to identify COVID-19 risks and prevention strategies on a periodic basis.

The recommendations for worker infection prevention in the guidance are based on an approach known as the hierarchy of controls, which groups actions by effectiveness in reducing or removing hazards. Under the hierarchy, the preferred approach is to eliminate a hazard or hazardous processes (e.g. exclude hazardous conditions, sick workers and visitors), install feasible engineering controls, and implement appropriate protocols for cleaning, disinfection and sanitation. Other administrative control measures, including the use of personal protective equipment (PPE), will also be needed.

Develop policies and procedures For screening, monitoring workers

The guidance also recommends that agriculture employers develop uniform policies and procedures for screening workers, which could include the following screening measures:

• Screening prior to entry into the work site, or if possible, before boarding shared transportation;
• Asking workers in appropriate languages if they have had a fever, respiratory symptoms, or other symptoms in the past 24 hours;
• Checking temperatures of workers at the start of each shift to identify anyone with a fever of 100.4 degrees or greater;
• Preventing employees from entering the workplace if they have a fever of 100.4 degrees or greater or if screening results indicate that the worker is suspected of having COVID-19-like symptoms;
• Encouraging workers to report symptoms immediately; and
• Encouraging symptomatic workers to self-isolate and contact a healthcare provider, or when appropriate, providing them with access to direct medical care or telemedicine, including:
  • Coordinating recommended diagnostic testing;
  • Providing information on when it is safe to return to work along with the operation’s return-to-work policies and procedures; and
  • Informing human resources, the on-site health unit (if in place), and supervisor (so worker can be moved off schedule during illness and a replacement can be assigned, if available).

The guidance recommends that agricultural employers ensure that personnel performing screening activities, including temperature checks, are appropriately protected from exposure to potentially infectious workers entering the facility by:

• Training temperature screeners to use temperature monitors;
• Using temperature monitors that are accurate under conditions of use;
• Protecting the screener with social distancing, barrier or partition controls, and personal protective equipment (PPE); and
• Provide temperature screeners with appropriate PPE including:
  • Gloves, a gown, a face shield, and, at a minimum, a facemask (see OSHA’s PPE standards at 29 CFR 1910 Subpart I); and
  • Filtering facepiece respirators, such as N95s, which may be appropriate for workers performing screening duties.

Develop policies, procedures for managing sick or asymptomatic workers

Under the guidance, agricultural employers should keep an eye out for workers who appear to have COVID-19 symptoms, including fever, cough, shortness of breath, or two or more of the following symptoms: chills, repeated shaking with chills, muscle pain, headache, sore throat, or new loss of taste or smell. If employers note these symptoms upon arrival at work, or among workers who develop these symptoms during the day, they should immediately separate the workers from others at the workplace, send them to their permanent or temporary housing arrangements, or – when they can’t be isolated in their existing housing arrangement – place them in alternative housing arrangements under quarantine away from other workers.

Employers should provide those personnel managing sick employees with appropriate PPE and training. If a worker is confirmed to have COVID-19, owners/operators should develop ways to communicate to those who were in sustained, close contact (within six feet for 15 minutes or more) with that worker of their possible exposure to COVID-19 based on the CDC Public Health Recommendations for Community-Related Exposure, without violating the infected worker’s confidentiality, as required by the Americans with Disabilities Act (ADA).

Employers should also take other measures, including cleaning and disinfecting the work area, equipment, common areas used (break areas, bathrooms, vehicles, etc.), and any tools handled by the symptomatic worker. If a worker is in employer-furnished housing, consider providing a dedicated space for the worker to recover away from others, and then clean and disinfect living quarters, cooking and eating areas, bathrooms, and laundry facilities. When workers who have had COVID-19 return to work, including those workers who have tested positive but remained asymptomatic, employers should follow the CDC interim guidance for Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settings.

Develop, implement engineering and administrative controls

Employers should assess and identify opportunities to limit close contact with others (maintain a distance of at least six feet between people whenever possible) if feasible, including adding touch-free clock-in/out methods or installing protective shields to lessen worker exposure.

Farm owners/operators should develop and encourage hygiene and sanitation protocols for daily cleaning and sanitation of workers, tools and work sites. Workers should have reasonable access to permanent and/or temporary hand washing facilities equipped with soap, potable water, and clean, single-use towels. Following manufacturers’ recommendations, owners/operators should conduct targeted and more frequent cleaning and disinfecting of high-touch areas of shared spaces (e.g., time clocks, bathroom fixtures, vending machines, railings, door handles). Those employers should encourage individual tool use, or if tools are used by multiple employees, clean and disinfect between each employee use, if possible.

Employers should train workers appropriately, in languages appropriate to the preferred languages spoken or read by those receiving the training. Communication and training should include:

• Signs and symptoms of COVID-19, how it spreads, risks for workplace exposures, and how workers can protect themselves;
• Proper hand-washing practices and use of hand sanitizer stations;
• Farm-specific social distancing practices (e.g., how to move through fields in a way that allows workers to stay at least six feet apart);
• Cough and sneeze etiquette;
• Other routine infection control precautions, such as putting on and taking off masks and gloves, and social distancing measures;
• Steps to take if they get sick; and
• Employer policies regarding COVID-19 (disinfection protocols, housing and worker isolation, sick leave policies) and how employees should alert their supervisors if they are experiencing signs or symptoms of COVID-19 or if they have had recent close contact with a suspected or confirmed COVID-19 case.

Consider placing posters outlining this information at the entrance to the workplace and in break areas, employer furnished housing, and other highly visible workplace areas.

Owners/operators should consider whether PPE is necessary to protect workers, especially when engineering and administrative controls are difficult to maintain and there may be exposure to other workplace hazards. Employers should train workers and provide them with PPE such as gloves, face and eye protection.

Give special considerations for shared housing, transportation

Owners/operators should give special considerations for shared housing and transportation. Grouping workers together into cohorts may reduce the spread of COVID-19 transmission in the workplace by minimizing the number of different individuals who come into close contact with each other over the course of a week, and may also reduce the number of workers quarantined because of exposure to the virus. The guidance encourages opportunities to place farmworkers residing together in the same vehicles for transportation and in the same cohorts to limit exposure. Finally, employers should ensure that workers do not bring children to the worksite.

Conclusion

Fisher Phillips will continue to monitor the ever-changing COVID-19 situation and provide updates. Make sure you are subscribed to Fisher Phillips’ Alert System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney.  You can also review our FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers and our FP Resource Center For Employers.