24 May
Food Safety Summit Booth 2022
Food Safety Summit Recap: Key Takeaways

The Food Safety Summit brings together the food safety community to learn more about today’s most crucial elements of food safety—from regulatory concerns and current industry trends to ongoing challenges and the latest technology and solutions.

This year’s Summit, held earlier in May, proved once again to be an engaging and informative meeting for all in attendance. Throughout the Summit, KTL’s food safety experts observed several common themes and challenges that the food industry is facing — challenges that your business may be encountering today.

We sat down with KTL’s attendees—Roberto Bellavia, Kasia Branny, Samantha Edwards, April Greene, and Joe Tell—to get their key takeaways from the Summit.

What topics were covered throughout the Summit?

The agenda for this year’s Summit was packed. Just some of the topics covered included cybersecurity, internal audits, food waste, food safety culture, foodborne illness, food safety management systems (FSMS), data-driven analytics, tech-enabled traceability, food recalls, microbial challenge studies, supply chain management, and sanitation.

Food safety culture headlined the agenda as the keynote topic this year, and it is clear this is an area garnering much more attention and visibility across the food industry. The keynote address provided the Food and Drug Administration’s (FDA) views on the importance of developing and nurturing food safety culture in the food industry, the industry perspective on implementing successful food safety culture strategies, and the importance of food safety culture through the eyes of the Department of Justice (DOJ).

KTL participated in a panel on virtual tools for food safety assessments. Panelists discussed how organizations are using remote technology to perform food safety assessments, food inspections, product and facility approvals, and similar tasks that are usually performed in person and onsite. The group discussed the practical, procedural, legal, and technology considerations any organization needs to develop efficient and effective remote audit protocols and maximize their potential use of remote tools.

In addition, KTL had a large turnout for our Solutions Stage presentation, Food Safety Management System Case Study: Using Microsoft 365® to Improve Compliance. KTL discussed how having a simple, centralized FSMS to manage, track, communicate, and report compliance program information can enable staff to complete required tasks, improve compliance performance, and support operational decision-making. The big secret: most companies already have the software they need in-house. An industry case study demonstrated a cost-effective approach for building an FSMS using the Microsoft 365 platform with SharePoint®.  

What are the biggest challenges companies in the food industry are currently facing?

Not surprisingly, one of the biggest challenges we heard time and again is related to staffing, from turnover in the quality department to being understaffed in production. On a related note, many also noted challenges in finding qualified—and available—auditors. Also not surprising, budget constraints and shortages in the supply chain remain challenges to navigate. It is increasingly difficult to get raw materials for operations and finding truckers to get materials to/from facilities is hampering production.

There remains a lot of focus on the application of new FDA requirements—like Foreign Supplier Verification Program (FSVP) and Food Defense and Intentional Adulteration—and finding good systems to manage all the related documents. While this is not a new rule, supplier approval/verification programs, vulnerability assessments, and written food defense plans will remain a key focus as a surge in food demand and lack of supply has created an environment ripe for food fraud. It is likely that FDA intentional adulteration inspections could also ramp up.

Finally, many companies are experiencing other regulatory bodies (beyond FDA and USDA) taking much more interest in food companies. The Environmental Protection Agency (EPA) and Occupational Safety and Health Administration (OSHA) have started to realize that they have been somewhat lax on inspecting these facilities. 2021 brought a significant uptick in EPA multi-media inspections, enforcement actions, and large penalties for violations, particularly related to anhydrous ammonia storage, risk management, and chemical accident prevention planning. Anhydrous ammonia is widely used as refrigerant in food facilities, including meat, poultry, and fish processing facilities; dairy and ice cream plants; wineries and breweries; fruit juice, vegetable juice, and soft drink processing facilities; cold storage warehouses; other food processing facilities; and seafood processing facilities aboard ships. Not only are companies trying to make do with fewer staff, but responsibilities are growing to include these environmental, health, and safety (EHS) regulatory compliance concerns, as well.

Are there any *new* food safety trends you heard about that companies should have on their radar?

Food safety culture. Food safety culture and its introduction into various certification schemes and regulations is a hot trend that will only grow in importance. Food safety culture is a core element of the FDA’s New Era of Smarter Food Safety. It is also a key component of the GFSI Benchmarking Requirements Version 2020 and, subsequently, is being integrated as a requirement into many of the benchmarked food safety certification standards. Best-in-class food safety cultures have robust systems in place to ensure consistent commitment, communication, procedures, training, performance measurement, and trust.

Cybersecurity. Cybersecurity is moving to the forefront for many. A new law was adopted that requires companies in listed industry sectors, including the food sector, to report to the Department of Homeland Security (DHS) within 72 hours of a cyberattack and within 24 hours if they paid ransom. Implementing regulations will clarify which companies are specifically subject to this reporting. Interestingly, Microsoft SharePoint was mentioned during the Summit as one of the safest technologies for storing and managing information compared to other food safety software from a cybersecurity perspective.

Rapid laboratory testing. Another interesting and very current discussion was about the new micronutrient and chemical analyses that have been developed to quickly test baby formula to help combat the baby formula shortage. There is a lot of opportunity and more “affordable” technology available to set up internal rapid laboratory testing to conduct product and environmental testing.

Data analytics. There is also a big push for usable data. Companies are starting to realize they need to have data they can use in a meaningful way to improve their systems. A well-designed and well-executed food safety program—with data trend analysis—provides an important tool for ensuring food safety. The goal should be to effectively capture and analyze audit data and then use that information to improve food safety and quality, achieve certification requirements, and enhance overall business performance.

Sustainable food management. The regulatory community has identified a real need for addressing food waste and the lack of circularity in the food industry. Wasted food makes up the largest percentage—over 20%—of any one material sent to landfills and incinerators each year in the U.S. The EPA, USDA, and FDA have already joined forces to address the magnitude of wasted food impacts across the U.S. through the U.S. Food Loss and Waste 2030 Champion program. Efforts to promote sustainable food management have begun extending to the state level and will continue.

Supplier expectations. Finally, companies (and customers) are setting higher expectations for the supplier and vendor companies they work with. As a result, more companies are pursuing certifications in areas they may not have previously considered to meet these customer expectations or, sometimes, to work globally. This can include anything from getting certified to various ISO management system standards (e.g., quality (ISO 9001), environment (ISO 14001), cybersecurity (ISO 27001), etc.), or participating in sustainability and corporate social responsibility reporting (e.g., Global Reporting Initiative (GRI), Carbon Disclosure Project (CDP), etc.).

What should companies in the food industry be doing now to plan for the future?

The shortage of workers—and resources, in general—is likely to continue for the foreseeable future. The days where it is typical to see someone at the same company for 25+ years are coming to a close! Managing the complexities of a FSMS and food safety program is challenging, even when fully staffed. Every regulatory agency and voluntary certification standard calls for companies to fulfill compliance requirements; supply chain and internal requirements create further complications and confusion.

One of the best things food companies can do to manage this challenge and plan for the future is to invest in going digital. Compliance efficiency and tracking tools are becoming essential to allow companies to do more with fewer resources. An integrated compliance management system brings various tools together to create one system that effectively manages compliance requirements, enables staff to carry out daily tasks and manage operations, and supports operational decision making by tracking and trending data that is collected daily by the team charged with implementation.

24 May
Staff Spotlight Joe Tell
Staff Spotlight on Joe Tell

Get to know our KTL team! This month, we are catching up with KTL Principal and founding partner Joe Tell. In his professional career, Joe has amassed over 25 years of experience providing strategic management systems, subject matter expertise, and technology solutions to help diverse organizations solve their EHS and food safety compliance and sustainability challenges. Joe founded Tellevate LLC in 2011 and was instrumental in the merger of Tellevate LLC with Kestrel Management LLC to form KTL in 2019. He is based in Atlanta, GA.

Tell us a little bit about your background—what are your areas of expertise?

Originally from Des Moines, Iowa, I attended Northwestern University in Evanston, Illinois, and graduated in 1997 with a B.S. in Civil/Environmental Engineering. I began my career as Project Engineer at Law Engineering and Environmental Services (now part of AMEC) and had the opportunity to work on the National Park Service Cape Hatteras Lighthouse relocation and the Atlantic Station steel mill redevelopment site in downtown Atlanta. In 1999, I transitioned to a small consulting firm in the environmental services industry and served as a Partner in that company from 2002 until 2011.

In May 2011, I founded Tellevate LLC as a small business focused on providing sustainability, risk management, and EHS management consulting services for government and industry clients. At Tellevate, I focused on sustainability, EHS, and quality management systems based on the ISO family of standards and the integration of strong compliance programs. In November 2019, Tellevate joined forces with Kestrel Management to form KTL—the business we are today.

As Principal and Chair of the KTL Executive Committee, I now help manage KTL’s business and direct consulting services in sustainability, EHS, food safety, quality, and information management. I have been able to leverage my passion for sustainability to help KTL’s clients improve their environmental and social stewardship.

What types of clients do you work with?

I work closely with many industrial companies, government agencies, universities, and municipalities to support their operations across the U.S and abroad. Notable projects throughout my career have included environmental management system (EMS) design for the U.S. Air Force and Army National Guard; sustainability program development for the U.S. Department of the Interior (DOI); environmental management support for the U.S. Agency for International Development’s (USAID) Bureau for Global Health; pesticide risk assessments for the U.S. Forest Service; and many engagements with a wide range of industrial companies to develop EHS, food safety, quality, and sustainability programs.

What would you say is a highlight of your job?

I love working with our exceptional KTL staff and a wide variety of clients across many industries to develop risk-based programs that improve human health and protect the environment. No two days are ever the same! I also enjoy managing a successful, small business—striving to continuously improve our operations and make KTL a great place to work.

What do you like to do in your free time?

I was a musician in high school and college and still enjoy jamming with other local musicians around Atlanta when I get the chance. I live with my wife (also an Environmental Engineer) and two daughters in Decatur, a small city within the metro Atlanta area that has a great neighborhood feel. You might find us at a festival on the Decatur Square or out to dinner at one of the local restaurants.

Read Joe’s full bio.

25 Apr
Staff Spotlight on Lisa Langdon, PE

Get to know our KTL team! This month, we are catching up with KTL Principal Lisa Langdon, P.E. Lisa provides project direction and strategic oversight to ensure the success of KTL’s projects and satisfaction of our clients. She has over 25 years of experience assisting clients with management system design and deployment, business process improvement, risk management, and compliance assurance. Lisa also manages KTL’s team of consultants and support staff. She is based out of our Madison, WI headquarters. 

Tell us a little bit about your background—what are your areas of expertise?

I have my degree in Civil Engineering with an environmental emphasis from the University of Wisconsin-Madison. I began my career in California, primarily doing solid waste engineering work. During that time, I became a registered Professional Engineer.

With my Midwestern roots, we moved back to the Madison area, and I began working at what was then known as Kestrel Management Services (now KTL). I wanted to transition into helping companies manage their environmental risks—beyond just remediating their environmental compliance issues. This has been the focus of my career for the past 20 years at KTL. I work primarily on management system design and deployment, business process improvement, risk management, and compliance assurance. In particular, my areas of expertise include analyzing EHS and other business processes and identifying and implementing improvement opportunities to ensure compliance and enterprise risk reduction.

In 2014, I took partial ownership of KTL and am now currently a principal owner and member of KTL’s Executive Committee. In this role, I continue to provide executive-level project direction and oversight, manage client relationships to effectively meet needs, oversee internal processes and systems, and manage KTL’s technical operations and staff.

What types of clients do you work with? What are the biggest issues you see them facing right now?

I have worked for a wide variety of companies ranging from a Class I railroad, to utilities and chemical companies, to municipal departments. While the majority of our projects involve solving issues and looking for opportunities to improve EHS and food safety compliance, we can help provide process improvement and risk reduction services to any type of organization. As a very recent example, we will use our systems analysis approach to work on a government-funded project in cooperation with pharmacy chains to develop strategies to improve access to medications for Opioid Use Disorder (OUD). While the industry and compliance issues are different, KTL’s overall approach on this project remains the same.

As for the biggest issues I see right now, I think it is safe to say that many of our clients continue to struggle with finding and retaining quality staff. KTL continues to help many companies fill this hole by supporting their EHS or food safety departments to ensure ongoing compliance requirements are met. We also see many companies still working to manage the new “hybrid” work situations that have emerged from COVID. KTL’s work related to information management systems has grown as more and more companies need improved access to and control of information, regardless of where employees are working.

What would you say is a highlight of your job?

In my role, I have the opportunity to collaborate with and oversee our team of experts as they work with our clients to solve some really difficult problems. For example, we have seen an uptick in the number of surprise EPA inspections and enforcement actions over the past several months. In addition to preparing our clients to be “inspection-ready” as part of normal operations, our team has been able to respond quickly to provide resources that support our clients during and after these inspections.

We also have many clients who are working hard to implement best-in-class practices. These projects allow us to be creative in identifying approaches that help these organizations improve their transparency; develop more effective metrics and dashboards; and better align, focus, and manage those initiatives that are core to sustainable business operations.

What do you like to do in your free time?

My husband and I are adjusting to being empty nesters with two daughters now in college and out of the house. We recently bought a canoe and are looking forward to Wisconsin weather warming up enough to use it. I also really enjoy traveling and am continually planning for my next trip.

Read Lisa’s full bio.

30 Mar
Food Safety Summit 2022
Visit KTL at the 2022 Food Safety Summit

As one of the premier events in the food industry, the Food Safety Summit provides a comprehensive conference and expo for attendees to learn from subject matter experts, exchange ideas, and find solutions to current industry challenges. The Summit is back in person this year, and KTL is excited to be there live!

  • When: May 9-12, 2022
  • Where: Donald Stephens Convention Center, Rosemont, Illinois
  • Who: Retailers, food processors, distributors, food manufacturers, growers, foodservice, testing laboratories, importing/exporting, law firms, and other food safety professionals
  • Find KTL: Stop by our booth (#125) in the exhibit hall!

KTL Solutions Stage Presentation

Be sure to also update your agenda to attend KTL’s Solutions Stage presentation on Thursday, May 12 at 1:30 pm. KTL Principal Joe Tell and Partner and Senior Consultant Roberto Bellavia will be highlighting the following case study:

Food Safety Management System Case Study: Using Microsoft 365® to Improve Compliance
Food and beverage companies and their suppliers are subject to a wide range of complex regulatory and certification requirements, often with limited resources to maintain and demonstrate compliance. Finding effective information management tools is critical. Having a simple, centralized FSMS to manage, track, communicate, and report compliance program information can enable staff to complete required tasks, improve compliance performance, and support operational decision-making. The big secret: most companies already have the software they need in-house. KTL will present an industry case study demonstrating a cost-effective approach for building an FSMS using your existing Microsoft 365® platform with SharePoint®.

21 Feb
KTL Consultant April Greene Achieves BCSP Certification

Consultant April Greene has become KTL’s newest Certified Safety Professional (CSP). April has completed all experience and eligibility requirements—including recently passing the rigorous CSP exam—for a Board of Certified Safety Professionals® (BCSP®) certification. The CSP is one of the industry’s most recognized environmental, health, and safety (EHS) certifications.

April is an experienced EHS professional with a 10-year history of working in the EHS services industry and laboratory settings. She has worked with many of KTL’s clients to create and manage EHS programs, plans, policies, and procedures to ensure regulatory compliance and workplace safety. In addition to her BCSP certification, April is a certified ISO 45001 (safety) and 14001 (environment) Lead Auditor and Wisconsin Department of Natural Resources (WDNR) Green Tier Auditor. 

Safety issues have become more complex, and today’s safety professional must continually be better qualified. “Safety, health, and environmental practice relies on the knowledge and skills of its practitioners,” explains BCSP’s CEO, Christy Uden, CAE, IOM.

BCSP credential holders are among the most highly trained, educated, and experienced individuals in the safety field. Having achieved a BCSP certification demonstrates April’s proven knowledge of EHS fundamentals, her commitment to worker safety, and the professionalism of her safety practice.

Next up for April: First a new tattoo to commemorate her CSP (think GHS pictograms), and then she’s off to the BCSP Global Learning Summit in May.

18 Feb
Staff Spotlight on Evan Fitzgerald

Get to know our KTL team! This month, we are catching up with KTL Principal Evan Fitzgerald. Evan leads KTL’s efforts to help clients develop, automate, and improve management and compliance information systems and optimize them to reduce costs and improve performance. He has developed numerous cloud-based applications that KTL uses to deliver compliance efficiency tools to our clients. He is based out of KTL’s Madison, WI headquarters.

Tell us a little bit about your background—what are your areas of expertise?

I earned a degree in mechanical engineering in 1996 and went to work for RMT, an environmental consulting firm, with the plan of being on their process engineering team. I ended up doing mostly construction management, which was not the direction where I saw growth in environmental compliance. When an opportunity with Kestrel Management (now KTL) opened in 1998, I jumped at the chance to make the switch to a firm that viewed environmental compliance from a management and process perspective. That made me employee #1 with the five original owners.

Since then, I’ve done a little bit of everything at KTL—but always with an eye towards technology. That included running our Aerie Technologies business when we created a joint venture to take the dynaQ™ assessment software into the marketplace. It was during that time I first met KTL Principal Joe Tell (formerly of Tellevate LLC) at a trade show focusing on software in environmental management. It was years in the making, but on November 1, 2019, Kestrel Management and Tellevate LLC merged to form KTL.

I now primarily focus on managing the SharePoint/IT side of KTL and have also taken on more business management responsibility as we have transitioned our management team. I have never been as excited and hopeful for the direction of KTL given the staff and clients we have put together.

What types of clients do you work with? What are the biggest issues you see them facing right now?

I work with all types of KTL clients. The biggest issue facing them (from my view of things) is the same thing that’s been facing them for decades—a need to improve processes via the use of technology with little direction and support provided by their internal resources.

People often ask me who our biggest competitor is in the IT sector, and I always say our biggest competitors remain Microsoft Excel and Word. Our clients do not have the time to put to use the tools often already at their disposal, and switching to one of the large platforms is expensive and time-consuming. KTL fills that gap by developing the right level of tool built to our clients’ current operations.

What would you say is a highlight of your job?

The diversity of work and clients that we help at KTL. It’s pretty rare when any two days are the same…and I don’t think after 23 years here that I’ve ever had two weeks the same.

What do you like to do in your free time?

My wife and I have three children that have kept us pretty busy for the past 21 years between theater, sports, and school functions. Our youngest is still in the house and has taken up competitive volleyball, giving us our first taste of the weekend sports tournament grind.

I have been an avid strategy card game and board game player for about 25 years. My big summer trip was attending a massive gaming convention in Indianapolis called GenCon. That’s taken a dip due to COVID. Hopefully, that can get back on track soon. I also participate in an archery and trap shooting league throughout the year.

Read Evan’s full bio.

08 Feb
MHEC EPA Inspection Presentation
KTL Presentation on EPA Inspections Featured at Loss Control Workshop

KTL is excited to be joining the Midwest Higher Education Compact (MHEC) as a featured presenter at the 24th Annual Loss Control Workshop live and in-person in St. Louis, Missouri. This workshop is open to all interested institutional representatives participating in MHEC’s Master Property Program.

KTL’s presention is part of the workshop’s technical agenda:

EPA Is Coming: Is Your Facility Prepared for an Inspection?
Thursday, March 3, 2022
3:30-4:30 pm CT

In recent months, regulated facilities have experienced an uptick in U.S. EPA information surveys and multimedia inspections. KTL’s Liz Hillgren, CHMM, CEA, will present guidance on steps you can take to prepare for inspections and minmize your risk of compliance findings and enforcment actions.

19 Jan
Staff Spotlight on Scott Ackerson, CEP

Get to know our KTL team! This month, we are catching up with KTL Senior Consultant Scott Ackerson. Scott is a Certified Environmental Professional (CEP) with technical expertise in international environmental compliance and environmental system design and nearly 20 years of professional experience in managerial and strategic leadership supporting governments, private industry, and NGOs. He is based out of Arlington, Virginia. 

Tell us a little bit about your background—what are your areas of expertise?

During my career, I’ve worked with Peace Corps in Morocco and United States Agency for International Development (USAID), Centers for Disease Control and Prevention (CDC), and Global Fund as an Implementing Partner. In addition, I’ve lived and worked in over 17 countries working with various Ministries of Health to provide technical assistance in areas such as developing health care waste management (HCWM) strategies/framework and environmental systems for donor counterparts to strengthen environmental compliance in areas including general hygiene; waste management (non-hazardous and hazardous); health and safety; water, sanitation, and hygiene (WASH); and HIV/AIDS prevention.

Some highlights over my career before joining KTL include the following:

  • While working on the USAID-funded Supply Chain Management System (SCMS) project, I developed and successfully implemented large-scale organizational initiatives that have played integral roles in achieving the organization’s mission.
  • I was assigned to support the Liberia Ministry of Health to establish a waste management strategy plan to dispose of unusable pharmaceutical waste in the supply chain. The assignment took about three months to successfully develop a waste management strategy plan that was used to properly collect and dispose of around 700,00 tons of unusable pharmaceutical waste.
  • In 2013, I led a team of three international technical experts to develop a HCWM system for the U.S. President’s Emergency Plan for AIDS Relief (PEPFAR)-supported Voluntary Medical Male Circumcision (VMMC) campaign in the Kingdom of Eswatini. The country required a proactive solution for the safe handling and disposal of more than 30,000 kg (66,000 lbs) of health care risk waste generated during its one-year lifespan. In collaboration with the Environmental Health Department within the Ministry of Health, the World Bank, and other relevant partners, the team was able to develop a sound policy that defines clear objectives, activities, roles and responsibilities, timelines, infrastructure, and control requirements for the execution of a new and improved national HCWM system. In addition, the team developed a VMMC HCWM toolkit for the safe and proper disposal of male circumcision hazardous waste.

What types of clients do you work with? What are the biggest issues you see them facing right now?

I’m currently part of an incredible KTL Environmental Compliance Support (ECOS) team that provides consulting services as part of the USAID ECOS contract. The ECOS contract provides USAID staff and Implementing Partners worldwide with technical, educational, and knowledge management assistance to facilitate compliance with 22 CFR 216, Foreign Assistance Act (FAA) Sections 117/118/119, regulatory requirements, and Executive Order and policy objectives.

In addition, the KTL ECOS team offers the USAID’s Bureau Environmental Officer (BEO) of Global Health (GH) and other BEOs a consistent, quality approach to environmental compliance to minimize duplication of systems and effort, facilitate the sharing of lessons learned, reduce compliance risks, and other related services.   

The most significant issue facing USAID’s BEO, much like many organizations in the public and private sector, is the lack of funding to ensure staff and Implementing Partners have the tools and knowledge to implement environmentally sound projects.  

What would you say is a highlight of your job?

I enjoy interacting with the KTL ECOS team to solve complex problems, while providing trainable moments for USAID staff and Implementing Partners.

What do you like to do in your free time?

I like traveling to places, learning about new cultures, and enjoying the food. Of course, I also enjoy the fine arts (i.e., symphony, musicals, and museums). But most of all, I enjoy life’s simple things with my partner, friends, and family, no matter the occasion.

Read Scott’s full bio.

22 Nov
Staff Spotlight Meghan Stenslien
Staff Spotlight on Meghan Stenslien

Get to know our KTL team! This month, we are catching up with KTL Consultant Meghan Stenslien. Meghan has a diverse background working in food safety; quality; and environmental, health, and safety (EHS) compliance and excels at managing compliance and certification programs. She is based out of LaCrosse, Wisconsin. 

Tell us a little bit about your background—what are your areas of expertise?

I have my bachelor’s degree in biochemistry and began my career performing quality and environmental lab analysis for food manufacturers. I quickly realized that I have a passion for designing and implementing management systems, helping companies meet their certification requirements, and working with them to further improve their current systems.

What types of clients do you work with? What are the biggest issues you see them facing right now?

I currently work with clients whose needs span both KTL’s food safety and EHS disciplines. Across the board, I am seeing issues with staffing. A combination of COVID-19 highlighting a shortage of skilled labor throughout the workforce and the need to stretch budgets further has created a “perfect storm” that needs to be addressed—and soon for many organizations. I am proud that KTL has the opportunity to work with these companies—many of which are struggling to get everything done—to implement efficient and quality programs that will sustain them through these times.

What would you say is a highlight of your job?

Variety is the spice of life for me! I enjoy the broad range of clients and services that I get to work with in my role at KTL. Each day presents new challenges and new opportunities to not only create lasting solutions for our clients, but also expand my own knowledge base. I feel fortunate to have so many experienced subject matter experts as colleagues whom I collaborate with daily.

What do you like to do in your free time?

I enjoy spending time with my wonderful 16- and 14-year-old daughters, my husband, and our pets. I love hiking and exploring uncharted places; traveling and experiencing new cultures; baking for family and friends; working on our home renovation; expanding my indoor garden; and doing crafts.

Read Megan’s full bio.

16 Nov
COVID Vaccination
COVID Vaccine Mandate: Update for Employers

The Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act was passed on May 15, 2020 to respond to the COVID-19 outbreak and its impact on the economy, public health, state and local governments, individuals, and businesses. Part of this bill involves protecting workers by requiring the Occupational Safety and Health Administration (OSHA) to issue an enforceable emergency temporary standard (ETS) that covers all workers from COVID-19 infections.

OSHA announced the COVID-19 Vaccination and Testing ETS on November 4, 2021. Just one day later, the Fifth U.S. Circuit Court of Appeals put a temporary halt to the ETS by granting an emergency motion/stay pending an expedited review because of “cause to believe there are grave statutory and constitutional issues with the [ETS]”. November 12, 2021 marked another court ruling against the ETS vaccine directive. The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.”

According to the OSHA website, “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation”–leaving many employers questioning how to proceed.

ETS at a Glance

The COVID-19 ETS requires employers with more than 100 employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy or a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering.

According to Deputy Assistant Secretary of Labor for OSHA Jim Frederick, “While vaccination remains the most effective and efficient defense against COVID-19, this ETS will protect all workers, including those who remain unvaccinated, by requiring regular testing and the use of face coverings by unvaccinated workers to prevent the spread of the virus.”

Additional provisions of the ETS include the following:

  • Determine, obtain acceptable proof of, and maintain accurate records of the vaccination status of every employee.
  • Provide paid time off to workers to get vaccinated and to recover from any side effects.
  • Require each worker who is not fully vaccinated to test weekly for COVID -19. Note: Employers are not required to pay for testing.
  • Ensure every employee who has not been fully vaccinated wears a face covering when indoors or in a vehicle with another person for work purposes. Note: Employers are not required to pay for face coverings.
  • Require employees to provide prompt notice when they test positive for COVID-19 so they may be removed from the workplace (whether vaccinated or not) until they meet required criteria to return to work.

These new mandates may also be accompanied by higher risk of OSHA enforcement and significantly increased penalties depending on the status of the Build Back Better Act (BBBA) (see related article).

Compliance Deadlines

OSHA has recently extended the comment period for the COVID-19 ETS by 45 days to January 19, 2022. If the ETS moves forward—which is still an unknown at this time—covered employers would have 30 days to develop, implement, and enforce their COVID-19 vaccination and/or testing policy. Employers then have 60 days for employees to actually be fully vaccinated or begin testing requirements. This ETS also serves as a proposal for normal rulemaking of a final standard.

Preparing to Comply

Many legal experts recommend employers prepare to comply regardless of ongoing court challenges and litigation. Corbin Carter, an attorney with Mintz in New York City, said in a Society for Human Resource Management (SHRM) article, “The Supreme Court may ultimately weigh in. But employers likely cannot await a court ruling on the new rule’s fate before properly engaging in the appropriate tasks—convening stakeholders, reviewing the relevant rules, assessing options—given the rule’s tight timeline.” 

When—or if—this mandate goes forward, tracking and documentation of vaccination and/or testing status will be a key part of complying with standards. This is not unlike other records OSHA requires for training, inspections, incidents, etc. A document/compliance management system (CMS) can allow for easier tracking and access to employee records to demonstrate compliance with the ETS. If your company is preparing for the ETS—or if you are simply interested in developing a strong, organized CMS—KTL can integrate our expertise in OSHA regulatory compliance into our SharePoint data management solutions to develop a system that will meet your organization’s needs.

OSHA intends to offer robust compliance assistance to help businesses implement the ETS and will continue to monitor COVID-19 infections and deaths as the pandemic evolves to change measures, as needed. Get more information and guidance from OSHA on the COVID-19 Vaccination and Testing ETS.