In December of 2021, the Food and Drug Administration (“FDA”) announced that they would postpone the Produce Safety rule water compliance requirements, subpart E, while seeking agriculture industry feedback. The comment period on the proposed rule change ends on April 5, 2022.
The Michigan Greenhouse Growers Council is seeking grower members’ thoughts, feedback and rule impacts.
Specifically, the proposed rule would amend the subpart E of the FDA Food Safety Modernization Act’s Produce Safety Rule. The change would implement pre-harvest agricultural water “assessments” versus the pre-harvest microbial quality criteria and testing requirements for “covered produce” other than sprouts. The assessments are being looked at as a way to identify conditions that are likely to introduce hazards into or onto produce/food contact surfaces and to determine if corrective actions are needed to minimize risks.
Under the rule, “covered farms” would be required to do pre-harvest agricultural water assessments once annually. As part of the pre-harvest assessments, there will be a requirement to evaluate the following factors:
Agricultural Water System(s) – Location and water source
Agricultural Water Practices – Application method
Environmental Condition – Frequency of rain, air temperatures, and sun exposure
Today, by a 6-3 opinion, the U.S. Supreme Court blocked President Biden’s and OSHA’s Covid-19 vaccine mandate, which would require businesses with 100 or more employees to have employees vaccinated or undergo weekly testing. However, the Court did allow a vaccine mandate for health care workers in nursing homes, hospitals and other facilities that receive Medicare and Medicaid payments from the federal government.
“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category,” the court said in an unsigned opinion.
Dissenting Justices were Stephen Breyer, Elena Kagan and Sonia Sotomayor.
At this time we do not believe that MIOSHA will proceed with issuing their own rule. As a safeguard, today’s Supreme Court decision will inform any attempts by OSHA to move forward with a permanent rule.
On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay previously placed on OSHA’s Emergency Temporary Standard (ETS). This means that the mandate is back on, for now. Several petitions to stay the ETS have been filed with the U.S. Supreme Court.
In the meantime…
We want you to be prepared should the government prevail at the Supreme Court. Covered employers (more than 100 employees) will have until January 10, 2022 to comply with all non-testing requirements of the ETS and until February 9, 2022 to comply with testing requirements. Employers will therefore need to spend time over the holidays ensuring they have a written policy in place, obtain employee vaccination statuses, and all other non-testing requirements by January 10. Then beginning February 9, employers will need to start testing employees who are unvaccinated.
Our previous email with frequently asked questions is available here.
Please contact either Cindy Ray at email@example.com or myself with any questions.
Jared I. Rodriguez
Executive Director, Michigan Greenhouse Growers Council
Managing Partner, MainStreet Legislative Consulting
The White House detailed its COVID-19 vaccine mandate rules today which will be officially published tomorrow. Our goal in this communication is to inform you as to the contents of the rule, keeping in mind that there will be legal challenges as soon as this rule is officially filed in the federal registry. Below are some frequently asked questions to help you navigate the impact this mandate may have on your business. You can also download the COVID-19 Vaccination and Testing ETS OSHA Emergency Standard or find Frequently Asked Questions at: https://www.osha.gov/coronavirus/ets2/faqs
Who does this rule apply to?
Any employer with more than 100 employees. When they say 100 employees, they are talking about how many people are on your payroll as of November 5th, 2021, regardless of full-time or part-time status or how many worksites you have. Minor employees count toward this 100-employee threshold as do remote workers. State and local governments in Michigan are also subject to the rule.
There are separate rules for federal contractors and healthcare entities who receive payments from Medicare or Medicaid. Those rules supersede the OSHA rules. In other words, most healthcare and federal contractors are technically exempt, because there are separate vaccination mandates already in place for them.
When does this rule take effect?
The rule takes effect November 5, 2021 when it is to be filed in the federal registry. It requires that covered employers either verify vaccination status or start weekly testing of employees by January 4, 2022.
My business is seasonal with wide fluctuations in employee count. Sometimes I’m over 100, and sometimes below. How does it apply to me?
If you have over 100 employees as of November 5, 2021, this rule applies to you for the duration of the rule (until it is cancelled) regardless of if you drop below 100 employees in the future. If you have fewer that 100 employees as of November 5, 2021, this rule does not apply to you until such time that your employee count exceeds 100.
What counts as “fully vaccinated’?
Under this rule, an employee is fully vaccinated after two doses of the Moderna or Pfizer vaccine or one dose of Johnson & Johnson vaccine. There are no booster shot requirements under this rule.
Are there mandated leave policies?
Yes. The rule requires up to 4 hours of paid leave for each shot. This mandated leave benefit cannot be charged against existing leave available to employees. The rule further stipulates that paid leave must be provided to employees for recovery from side effects, but that can be deducted from existing paid leave benefits.
Do I need to verify and retain vaccination status records?
Yes, the rule does require you to collect, maintain and be able to produce vaccination status of vaccinated employees upon the request of OSHA. Verbal confirmation of vaccination status is not considered compliant. The standard vaccination card is acceptable as verification. Employers are not required to verify the information on that card.
What about the employees who choose not to be vaccinated?
Employees who are not fully vaccinated by January 4, 2022 are subject to two requirements: weekly testing for in-person work and wearing a face covering over the mouth and nose when working indoors or in a vehicle with another employee.
Are there exceptions to this mask requirement?
ADA accommodations must still be made for employees who qualify. Additionally, here is the language from OSHA on further exceptions to the face covering rule:
The employer must ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes, except:
1. When an employee is alone in a room with floor to ceiling walls and a closed door.
2. For a limited time while the employee is eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements.
3. When an employee is wearing a respirator or facemask.
4. Where the employer can show that the use of face coverings is infeasible or creates a greater hazard that would excuse compliance with this paragraph (e.g., when it is important to see the employee’s mouth for reasons related to their job duties, when the work requires the use of the employee’s uncovered mouth, or when the use of a face covering presents a risk of serious injury or death to the employee).
How often are tests required?
The employer must have a negative test no older than 7 days old when in person work is being performed. Waiting for a test result is not considered to meet the standard.
Is the employer required to provide leave time for testing or to pay for the costs of test?
No, the employer is not required under the rule to provide leave time or cover the cost of testing.
Is testing required of remote workers?
No, testing is only required for in-person work. However, if a remote worker does attend the office occasionally, the rule requires them to produce a negative test that is no older than 7 days old before that in person work is performed.
What if an employee has had COVID before?
If the employee has had COVID in the previous 90 days and has produced proof of that infection, the testing requirement is lifted for 90 days from the date of the positive test. Employees with COVID infections more than 90 days ago or those who cannot produce documentation of a positive test are still subject to the testing rule.
Do I have to maintain the negative test records?
Yes, under the rule, you must keep records showing the negative test result just as the rule requires vaccination status records to be maintained.
Do self-administered over-the-counter tests count?
Yes, but only if supervised (and confirmed) by a medical professional or taken in the presence of a representative of the employer.
What if I have employees with medical or religious exemptions? Do they still need to be tested and must they wear face coverings?
Yes, the rule generally requires those employees with exemptions to both be tested and wear a face covering. Some employees may have accommodations from face coverings under the Americans with Disabilities Act.
I’ve heard some states are banning vaccine mandates. How is that conflict resolved?
The rule tries to assert that it supersedes state and local laws. That assertion and most other aspects of this rule will very likely be vigorously challenged in court.
Do I have any obligations to educate employees, develop policies and otherwise maintain records on this new rule?
Yes. There are employee education and notification requirements, as well as policy development and record keeping requirements.
The MGGC Annual Meeting scheduled for October 25-27, 2021 at the Park Place Hotel & Conference Center in Traverse City has been postponed due to unforeseen circumstances. If you have booked a hotel room you will receive a full refund without penalty.
Labor shortages continue to impact all facets of our membership and economy. Spending time away is increasingly more difficult and the lack of workforce to the service industry has reached alarming levels.
Every challenge we encounter presents an opportunity. We are in the process of rescheduling our Annual Meeting to 2022 and launching a new series of four “Regional Mini-Forums.” The Forums will be designed for members/industry to share best practices, hear key updates from the Capitol, and develop pro-active policy priorities for which to advocate as a Council.
Do you Want to Host a Vaccine Clinic at your Greenhouse?
The Michigan Primary Care Association has developed a centralized web form for collecting vaccine event interest for food processing and agricultural workers across the state of Michigan.
Intent of Form: This form is for employers, housing providers, and other organizational stakeholders to indicate their interest in hosting a COVID-19 vaccine event for agricultural workers.
This absolutely includes greenhouses and may be particularly helpful for those who employ H-2A workers.
After submission, the information will be sent to the community health center serving the request area and the health center will follow-up to discuss additional details.
Individual agricultural workers who would like a COVID-19 vaccine are not intended to complete this event request form. Instead, please visit Michigan.gov/COVIDVaccine or vaccinefinder.org to find a vaccine provider in your area.
Generally, a health center will make arrangements to provide on-site COVID-19 vaccine administration if there are 30 or more agricultural workers at the requesting location. If there are fewer than 30, the health center may serve the agricultural workers from the requesting location at a nearby health center site or another upcoming vaccine event in the area. If unsure, submit the interest form with your best available information.
Health centers will try to follow-up within 2 days of receiving your information, but may take up to 5 days, depending on the number of requests. We appreciate your patience and support in reaching this essential workforce with the vaccine.
Ginger Vallejo, Agricultural Employment Liaison
Michigan Department of Labor and Economic Opportunity
Good news! It looks like agriculture workers will be eligible to get the COVID-19 vaccine starting March 1. Governor Whitmer’s office sent out a statement on next steps including this:
Additionally, workers in food processing and agricultural settings, about 79,000 Michiganders, will be able to be vaccinated as of March 1. This will help ensure the health and safety of Michigan’s essential food and agriculture workers and keep the state’s food supply chain moving.
I believe this would include greenhouse workers as stated in the Michigan Farm News this week. The following is from the article:
According to Ben Tirrell, associate legislative counsel for the Michigan Farm Bureau, the state’s COVID-19 vaccination plan tries to balance health risks while maintaining essential services to the broader population.
Tirrell said the CDC definition of food and agricultural workers includes almost all associated input supply, farm or greenhouse labor, transportation, and processing and retail workers associated with the human and animal food systems.
This is a great step in protecting the workers that are so important to the greenhouse industry. Your employees should be able to start signing up with their local health departments soon.
Please make sure you still follow the CDC guidelines for protecting workers and customers in your greenhouses until this is over. If you are having trouble locating supplies of PPE, give Cindy or me a call and we will see if we can help you locate what you need.