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COVID-19: Updates for Agricultural Employers

March 25, 2020

Overview

It is officially spring, and for those in the agricultural industry, this means we have entered a very busy time of year. As agricultural employers work to balance their response to COVID-19, all while maintaining planting, moving livestock, and producing food, here are a few important laws and recommendations to keep in mind.

On March 19, 2020, the Occupational Safety and Health Administration (OSHA) issued a Guidance on Preparing Workplaces for COVID-19. Please note that this guidance does not create new legal obligations, but it does contain a great deal of information meant to assist employers in providing a safe and healthy workplace. While we strongly encourage employers to read the entire Guidance, here are a few highlights for implementing good hygiene and infection control practices that are particularly relevant to agriculture operations:

  • Promote frequent and thorough hand washing. If soap and running water are not immediately available, provide alcohol-based hand rubs containing at least 60% alcohol.
  • Display handwashing signs in restrooms and portable toilet/sink washing stations.
  • Encourage workers to stay home if they are sick. Please note that the Equal Employment Opportunity Commission’s (EEOC) recent guidance, discussed below, takes this one step further (following the CDC) and permits employers to require employees with symptoms to stay home.
  • Encourage respiratory etiquette, including covering coughs and sneezes (preferably with their elbow). Post a sign where appropriate.
  • Establish policies and practices to increase social distance among employees and between employees and others. This is now mandatory in Oregon (and Washington as of March 26) and can be a basis for shutting down operations if a policy is not in place. Employers should consider staggering work shifts and increasing physical space between employees during meals, rest periods, and restroom breaks.
  • Discourage workers from sharing tools and equipment, when possible.
  • Educate workers about how they can reduce the spread of COVID-19 and the resources that are available to them.
  • Maintain routine cleaning and disinfecting of surfaces, equipment, machinery, and other elements of the work environment. When choosing cleaning chemicals, employers should consult information on Environmental Protection Agency (EPA)-approved disinfectant labels with claims against emerging viral pathogens (these are expected to be effective against COVID-19). Always follow manufacturer’s instructions for use of cleaning and disinfection products. For more information, see CDC Guidance on how to clean and disinfect. **REMEMBER** when cleaning enclosed spaces such as cabs of farm equipment, always ensure proper ventilation. 
  • Increase ventilation and circulation of outdoor air in enclosed workspaces.
  • EEOC issued guidance clarifies that during the COVID-19 pandemic, employers are allowed to ask employees who call in sick if they are experiencing symptoms of COVID-19 (fever, chills, cough, shortness of breath, sore throat). Furthermore, while measuring an employee’s body temperature is not usually allowed, during the COVID-19 pandemic employers may measure employees’ body temperatures. For more guidance from the EEOC, please visit their website.
  • Develop and inform your employees of policies regarding social distancing, hygiene, and cleaning as well as response policies for employees who have COVID-19 or come into contact with someone with COVID-19. Schwabe has been working with our clients to develop these policies and can assist you in developing a policy unique to your circumstances, if needed.

On March 23, 2020, Oregon’s Governor Brown issued Executive Order 20-12, which went into effect immediately. Most importantly for agricultural employers, this Order requires that any business where work-from-home options are not available must designate an employee (or officer/owner) to establish, implement, and enforce social distancing policies consistent with guidance from the Oregon Health Authority. This policy must also address how the business will maintain social distancing protocol for business-critical visitors, for example vendors or inspectors. Failure to follow these requirements can lead to a shut down until the business operations are compliant. If you have questions, Schwabe Williamson & Wyatt attorneys can assist you in drafting your social distancing policy.

Also on March 23, 2020, Washington’s Governor Inslee issued Executive Order 20-25. Effective at midnight on March 25, 2020 all non-essential businesses in Washington are required to cease operations, other than those which can be performed remotely from home. Many workers in the food and agriculture sector are classified as essential under this Order, including farmworkers, food manufacturer employees, and animal agricultural workers. Please see an entire list of essential critical infrastructure workers here.

Prior to operation on March 26, essential businesses must establish and implement social distancing and sanitation measures established by the United States Department of Labor’s Guidance on Preparing Workplaces for COVID-19 at https://www.osha.gov/Publications/OSHA3990.pdf (the OSHA guidance discussed above) and the Washington State Department of Health Workplace and Employer Resources & Recommendations. Washington Department of Health establishes guidance for handling sick or possibly sick employees with COVID-19. Washington Department of Health also requires employers to create and inform employees of their company’s social distancing policy, tell sick employees to stay home, place posters in work areas regarding good hygiene habits, ensure employees have access to soap, water, and/or disinfectant gel with at least 60% alcohol to ensure good hygiene, and to clean all high touch areas. Agricultural employers will want to pay close attention to those areas and equipment shared by multiple employees. Each policy should be crafted to your work place, employees, and work circumstances. For assistance in drafting these required policies, please reach out to a Schwabe, Williamson & Wyatt attorney.‎

While not required at this time, employers may want to provide employees with a letter identifying the employee as engaged in essential critical infrastructure in order to ease employee concern about traveling to job sites. Please reach out to a Schwabe, Williamson & Wyatt attorney if you would like assistance with these letters.

On March 18, 2020 Congress passed the Families First Coronavirus Response Act which provides paid leave for employees unable to work due to closure of schools and child-care facilities (Paid Child Care Leave) and temporary paid sick leave for COVID-19 related absences (Paid Sick Leave). Both emergency Paid Child Care Leave and emergency Paid Sick Leave apply to employers with fewer than 500 employees. All employees are permitted to take Paid Sick Leave regardless of how long they have worked for the employer. Child Care Leave may be less common for agricultural employer because employees are only eligible if they have worked for the prior 30 or more calendar days. The good news is that any leave employers pay under this law is 100% reimbursable through a federal tax credit that will be paid quarterly. Please review the law carefully to ensure compliance. For your convenience, a summary of the law may be found here. Both Paid Child Care leave and Paid sick leave are effective April 1, 2020.

Please note this article is only a brief summary and resource for employers and is not legal advice or a definitive guide to all policies regarding COVID-19. Governmental authorities are coming out with new recommendations, guidelines, and laws frequently, so it is important that every employer continue to check for updated guidance from both the state and federal governments. Schwabe has prepared a resource for affected employers, which can be found here. Check back often, as this resource is being updated on a regular basis.

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