Safety Perspectives From the Dallas Region: Inside OSHA’s Meatpacking National Emphasis Program

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Frank Davis: Good day, and welcome to the Dallas Region OSHA podcast. Today, we have serial Ogletree bloggers, John Surma and Ryan Swink, both of our Houston office.

John, Ryan, welcome.

John Surma: Glad to be back with you on the Dallas Regional podcast. Ryan, you got to speak for yourself, my friend.

Ryan Swink: Yeah, that’s right. I’m hopefully going to be able to get a few words in here in between the two of y’all, but happy to be here, and thanks for the invite.

Frank Davis: I had the pleasure of reading your blog talking about OSHA’s October 15th, 2024, enforcement memo that’s related to animal slaughtering and meat processing. It’s well-written, of course, and very interesting, but it put me in mind that OSHA recently pulled down their poultry emphasis program earlier this year, and I was prepared to talk about, well, what happened to poultry in light of this? But just this morning, OSHA announced that this meatpacking emphasis program now includes poultry, so they called it an expansion of the poultry policy.

Is this new or renewed emphasis on meatpacking, in general, an expanded war on meat, or is it something else?

John Surma: I’ll let Ryan comment on whether it’s a war on meat, and certainly I think that there’s room for thought there. From the standpoint of this being a renewal of the poultry emphasis program or some sort of recasting of it or whatever OSHA’s spin on this is, and quite frankly, I read the memo, and I felt I was being spun to death, the reality is that the old meatpacking emphasis program, the old meatpacking guidance, basically has been expanded upon, and it never went away. And so, while the poultry emphasis program called out one sector of the industry, I really have a hard time saying that this is an expansion or continuation of that emphasis program because what it really is is an expansion and continuation of enforcement guidance relative to meatpacking as a whole, meatpacking and allied industry sectors as a whole.

And Ryan, I don’t know what your thoughts are in terms of whether this is a war on meat, but that’s how I read it.

Ryan Swink: I’d say that it’s close to a war on meat. It’s certainly a first shot across the bow, and we’ll have to see how CSHOs are actually implementing it, but it certainly seems like OSHA wants to take a close look at everything that anyone in any meat-related industry is up to.

Frank Davis: It’s interesting to me, under the old poultry emphasis program, I had several inspections of the poultry industry, and as I look through your blog, and it discusses the guidance given to the OSHA compliance officers about their scope of inspection, it essentially covers everything imaginable under the sun. It’s not really an emphasis on any particular area because it talks about sanitation, it talks about personal protective equipment, slips, trips, and falls, process safety management, especially with ammonia cooling facilities, chemical hazards, of course, flow from that, egress and blocked exits, which sometimes you find in tight spaces where you’re trying to store a lot of product, remove a lot of product.

But I also note that it addresses ergonomics and musculoskeletal disorders, or MSDs, which is easier for me to say. And from that perspective, it really seems to continue the old targets that were of particular importance to the poultry emphasis program. What was the discussion in the meatpacking emphasis program as it relates to ergonomics and musculoskeletal disorders?

John Surma: Well, it’s interesting, Frank, at least, and this is my read, and certainly Ryan can speak in terms of what his read is, there really is no discussion about the ergonomics piece. Basically, OSHA listed out a series of things that each of these inspections is to include. The list of things that it’s to include is pretty significant. It includes those that you mentioned, as well as several others, and it doesn’t really speak to the intricacies of what OSHA’s expectations are, but instead, it’s giving CSHOs this long laundry list of things. And I mean, certainly including PSM in the laundry list of things means that each of these inspections is going to be long and complex and detailed and full of record requests, but there’s not really a whole lot of guidance to the CSHO about what do you prioritize? Are these things mandatory in every single inspection or are there things where you can avoid checking the boxes?

And as it stands right now, and as I read the program, there’s nothing that the CSHO can do to prioritize things. There’s nothing that the CSHO can do to basically check the box and say, “Yeah, we don’t have to look at this.” They have to look at each of the listed items. These are going to be long, expensive, complicated inspections.

Frank Davis: I guess that’s right. You look at ergonomics, and ergonomics is a subject of multiple emphasis programs, the one that immediately comes to mind, of course, is the warehouse and distribution center emphasis program, but what is notable and what is missing, and with regard to ergonomics, is the absence of a regulation regarding ergonomics and how to even conduct an ergonomic assessment or what’s expected. So, if it’s not included in the emphasis program as to how to evaluate ergonomic hazards in a meatpacking facility, where does an employer look to get those answers?

Ryan Swink: I don’t even think OSHA knows. It seems like generally, just across all industries, ergonomics and MSDs are something that OSHA is trying to develop a standard, an expectation, something, been stumbling around in the dark for a few years now, and it seems like they’ve stumbled into meatpacking as their next frontier to try to figure out how they’re going to regulate this area.

John Surma: Yeah, I’d agree with that. And also say, I mean, look, when has the lack of guidance prevented OSHA from putting out other guidance that compels people to do certain things? I mean, you look at this emphasis program, you look at the warehousing emphasis program, who cares? We don’t need to tell people how to do an ergonomics inspection. We’re just going to issue the edict. This is how things are starting to happen at a greater and greater frequency. And I think this is one of the problems with something like this when it becomes an emphasis program, and we send something out without giving the CSHOs guidance. And I mean, I feel for the CSHOs in as much as, okay, so what am I supposed to do about this?

Frank Davis: What I find is if they identify an ergonomics issue, and they frequently do, they call in their ergonomic strike team from Atlanta and from Salt Lake City to do the calculation. And every citation that I’ve seen that cites ergonomics, of course, it’s under the General Duty Clause, but once we get a hold of the file, once we get a hold of their inspection file, we see the inspection file reads very similarly between each and every inspection.

So maybe we would do our clients a service if we could reduce that into a non-privileged format for them to be able to follow and respond to what appears to be a boilerplate assessment that basically just changes numbers and job titles in these so-called expert ergonomics evaluations by these people that are retained by OSHA.

Ryan Swink: Along that theme is the emphasis on PSM. PSM is extremely complicated just generally, and especially in the meatpacking industry. It’s unique, and I think John and I have both, over the last few years, seen it multiple times, a lack of understanding from OSHA as to how ammonia PSM differs from your standard chemical PSM. And it oftentimes has led us to long, extended contests that really just came down to OSHA not understanding exactly what was going on. And so to me, seeing PSM on this list is certainly raising a red flag.

Frank Davis: Well, especially with the focus on ammonia cooling systems, right? You’ve got so much of that throughout the industry, especially down here where we deal with high temps and high volumes of ammonia in those systems. But I’ve always thought of the PSM standard as another paperwork standard, right? That’s what I’ve always thought of PSM as.

So whenever you talk about prolonged litigation, what type of issues are you seeing around PSM, Ryan, that you think employers might be able to mitigate against in advance of stepping into one of these inspections?

Ryan Swink: It certainly is a documentation standard, so making sure that your documentation is right. There’s a lot of things that PSM doesn’t require you to do, but it requires you to explain why you’re not doing it. So if you have an audit finding, and you’re going to delay because the lead time of getting those parts is six months, that needs to be documented in your PSM. And while it is a paperwork standard, OSHA doesn’t cite it as a paperwork violation. Every PSM citation that I’ve seen has started out as a serious, and they are, at a minimum, they’re hesitant to come off of that.

Particularly, another thing that’s unique to ammonia refrigeration is ammonia is not corrosive, and it is hard to get that through OSHA’s head sometimes. And so certainly, if you have a PSM inspection, you should be saying ammonia is not corrosive as much as possible just to get that messaging out there because it takes some time to convince OSHA of that fact.

Frank Davis: I think that’s a fair assessment. I would piggyback on that by saying we’ve got a lot of brand new compliance officers that are coming into the business that may just have a couple years of experience, and while they do tend to point to more experienced compliance officers to assist with the PSM evaluation, still with these compliance officers, I think employers trying to educate those compliance officers during the course of the inspections is a smart recommendation.

John Surma: Well, I would add a couple of points, and I do agree that trying to educate the compliance officers is important. One of the things that we’ve seen as a problem in a number of ammonia refrigeration inspections relates to the fact that most of refrigeration refers for their RAGAGEP to the IIAR documents, the ANSI/IIAR documents now, and OSHA doesn’t understand how that document works. And so rather than simply referring to it and incorporating it by reference, actually laying out the steps from IIAR 6 or whatever IIAR document that you’re following. PSM program, I think is really, really critical.

Number two is documenting and explaining your inspection process for purposes of maintaining mechanical integrity. OSHA does not appreciate, that is, from the standpoint of ammonia refrigeration, you don’t have to do non-destructive testing. All you have to do is basically confirm that your insulation remains intact, and if it doesn’t remain intact, that every five years you’re confirming those areas that the insulation didn’t remain intact are still viable and haven’t undergone corrosion. Ryan alluded to this, but this is one that’s completely lost on OSHA, and it’s a problem in every single ammonia inspection.

So if we can get past those things, and we can get OSHA to understand those things, we’re usually in a whole lot better shape. But at the end of the day, my problem with this is you’re dumping a boatload of stuff on what may be a brand new or very new CSHO. They’re going to be drowned with the level of detail that’s going to be required. They’re not going to ask the right questions; they’re not going to ask for the right documents; and the employers are essentially going to have to feed them information to satisfy, when it gets back to the area office, the folks that do have the knowledge and the experience and are asking the questions because quite frankly, on the first pass or two, that new and experienced CSHO is not going to get it.

Frank Davis: Yeah, that’s a good point because if they don’t get it on one or two visits, they’ll come back for many, many visits and just keep going back to their area office managers, saying, “No, you don’t have enough. Go back.” That can be intrusive and disruptive, but it also borders on what is a reasonable inspection, reasonable times, and reasonable places?

John Surma: Yeah, no, it’s hugely burdensome, and quite frankly, it’s become my default and go-to in addition to, “This request is overly broad and unduly burdensome.” It violates Section 8 of the act because it’s duplicative, it’s burdensome. OSHA does have an obligation to make the inspection essentially as minimally intrusive on the employer as possible.

Frank Davis: That’s exactly right, and we’ll talk about that again here in just a minute.

The last point I want to touch on before we rotate to other hazards is the recordkeeping portion of the meatpacking emphasis program. What I have found in ergonomics inspections, I’m sure you both have found the same thing in ergonomic inspections, is that OSHA goes, and they look at the 300 logs, and they look at any injury logs that are available, and for line speeds in the poultry industry. For instance, you have to maintain, if you’re working above the, was it the 2015, 2016 line speed parameters, you’re expected to maintain a first aid log of people coming in for first aid that could be related to musculoskeletal disorders or other soft tissue injuries. And OSHA will come in and evaluate the records really closely to determine whether there’s been a recordkeeping violation because when they go into these inspections, it’s my belief that they are looking to establish an ergonomics violation, and in order to establish one successfully, they need to show employee exposure, and it’s easiest for them to show employee exposure if they can establish a series of MSDs.

So, with many of these inspections, I’ve either seen hazard letters saying that the employer didn’t do a good job recordkeeping or that the employer did a bad job identifying trends in MSDs through their recordkeeping. So either way, your records become the subject of deep evaluation. So, to the extent that anyone’s maintaining any records related to first aid outside of the 300 logs, I would invite employers being thoughtful about reconciling your first aid logs with your OSHA injury logs to ensure some consistency and try to reduce opportunities for citations along those lines.

Does the new guidance say anything more about recordkeeping or is it like ergonomics, it’s just on the list?

John Surma: Just on the list.

Ryan Swink: There is a little bit of additional detail, and I think Frank covered most of it, but one of the things that stood out to me is that the memo mentions injury and illness records should be something that CSHOs are interviewing employees about. So, reading between the lines, I see that as you should be asking employees if they’ve ever been injured, and then you should be cross-checking that against the 300 logs.

From an employer’s perspective, just to be preemptive on that, you need to ensure that all of your employees know that when they’re injured, they need to be coming to the appropriate person to make sure that gets logged and evaluated because that’s something that OSHA’s going to be looking to catch employers on.

Frank Davis: That’s a good call-out, Ryan.

So, other than these hazards we’ve just discussed, are there any other areas compliance officers are directed to evaluate?

John Surma: Yeah, there’s a laundry list of things that they’re expected to look at, and it’s as extensive as the list that is included in terms of other programs. It’s similarly long and it really is a snout-to-tail type of inspection and laundry list of things that the CSHO’s supposed to keep an eye out for, and it covers literally everything. And so this is one of the rare emphasis programs I’ve seen where it doesn’t just say, “Wall to wall,” it lays out wall to wall in excruciating detail.

Frank Davis: So, toilets and sanitary facilities, worker access to toilets and sanitary facilities, handling fresh meat, any exposure to feces and blood, all areas such as that?

John Surma: Everything, snout to tail.

Frank Davis: Okay, snout to tail. What about heat?

Ryan Swink: The memo uses the word heat once, but it doesn’t really call it out, and I think we’re going to have to see what happens with the current proposed heat standard. And I’m sure once that gets finalized, if that gets finalized, we will see a revision to most enforcement memos, including this one, to address heat risk.

John Surma: The reality is, while that’s true in certain aspects of the meatpacking business, or let me rephrase that, while heat is an issue in certain aspects of the meatpacking business, the vast majority of the meatpacking business is at temperatures that most people would find rather cold. And so yeah, I suspect that this one, even in the next iteration after we have a heat illness and injury prevention standard, is probably going to be minimally tuned to heat just because of the nature of the majority of the environment that these folks are working in.

Frank Davis: So, as long as I’ve got you Section 8 experts here on the line, I note that your blog discusses how the memorandum instructs that inspections should be conducted during off-shift times to ensure that second and third-shift operations such as sanitation services are covered. How does that reconcile with OSHA’s Section 8 duty to conduct inspections at reasonable times and places, that is, during times when there may not be managers to greet them during off-shifts?

John Surma: It doesn’t.

Frank Davis: Oh, that’s insightful.

John Surma: Well, no, I mean, and look, I mean, here’s the cold, hard reality. Do you think OSHA cares that you’re going to make it inconvenient for the employer, despite the fact that OSHA has a Section 8 responsibility not to make the inspection burdensome and that it has an obligation to do it during basically normal business hours and during normal operation types? No. I mean, OSHA’s perspective on it is, I’m 100% confident in this, “You’re open 24 hours a day, why can’t we come in 24 hours a day? Just because your managers aren’t there 24 hours a day doesn’t mean it’s not reasonable for us to be there.”

Frank Davis: Well, I’d be careful about saying, “Don’t have managers.” You would have managers present-

John Surma: Well-

Frank Davis: … but it wouldn’t be the managers that you would typically designate to interface with OSHA during an inspection.

John Surma: So, I was the 21-year-old college student in a frozen food plant working by myself as the sole manager of 150 people. I really wasn’t the person that OSHA was supposed to talk to if they rolled into the facility. I’ll just leave it at that. I mean, yeah, the night shift crew, that’s a, I mean, for anybody who’s worked night shift, they’ll understand, that’s a different world that you live in working night shift. But yeah, no, I mean, yes, there’s managers, there’s supervisors on duty, but safety’s gone, plant management, plant-level management’s gone.

Frank Davis: It’s a world of production, right?

John Surma: Yeah.

Frank Davis: That’s what happens at night. It’s not the administrative team that’s there that’s dealing with the SE details related to specific compliance and how to interact with these government inspectors. So, it does put a strain on those that are required, those managers that typically wouldn’t work that shift, that have to come in and conduct those off-shift inspections to the extent those are agreeable to the employer.

John Surma: But you know that OSHA’s perspective on it is that, “Operation’s running 24 hours or whatever the operation runs, why are we putting a burden on you?” And the employer needs to be able to articulate why this creates a burden.

Frank Davis: Well, I think that’s fair, and I feel like we’ve laid that out a little bit right here, the arguments that we might make if we were put in that position to have that discussion with OSHA on behalf of a client. But we also have to understand that a lot of these folks have no private sector experience whatsoever, and a lot of these compliance officers don’t have any concept of how these plants are staffed at different times of the day. So you’re right, it’s more education. It goes back to the point that Ryan made about 10 minutes ago.

Lastly, the memo covers contractors and other vulnerable employees. Ryan, could you give us a little insight into this aspect of the meatpacking memo?

Ryan Swink: In addition to your standard inspection, I think there’s some emphasis in this memo on addressing contractors, and several of the applicable standards are going to have provisions that are explicitly addressing contractors, and OSHA is going to probably be leaning quite heavily on the Multi-Employer Citation Policy as they are conducting these inspections. So, employers need to make sure not only they’re doing everything that they need to do, but they need to be taking those reasonable steps to ensure that all of their contractors are complying with all the applicable standards.

John Surma: Yeah, I would to what Ryan said. There is a heavy emphasis in this memo and other guidance that is referenced in this memo to some of the things that OSHA has issued in the last few years where there’s an emphasis on the young folks with questionable status, folks with language issues, et cetera. And this memo and this guidance, it expands upon that and continues that where part of the inspection is or part of the drive behind the inspection is to make sure that those folks are included in the compliance officers’ interviews and other efforts and that referrals are made to Wage and Hour and other federal agencies whenever potential violations are identified. So, this is a continuation of the administration’s position in the last couple of years relative to those issues.

Frank Davis: So, at the end of the day, there are a lot of moving parts here. As we begin to close this podcast, what takeaways would you offer our clients?

John Surma: I’ll let Ryan speak for himself. I mean, my takeaways, my recommendations for takeaways is consistent with what we’ve recommended folks in the past, which is, number one, be aware of what’s going to apply to your facility. And number two, get yourself ready to deal with the issues set forth in this memo. It’s extensive. It’s very, very broad, and rather than just having a preparation for a fat-cat type inspection, you’re going to have to get your team ready for the wall-to-wall type of inspection and focus on these various issues. And not only do you need to be doing this, but any of your, whether it’s staffing companies, whether it’s temporary companies, whether it’s contractors that are working in your facilities, you need to make sure that they’re all ready for it as well.

And I don’t know, Ryan, you got any thoughts?

Ryan Swink: Yeah, no, I would completely agree with everything you said, and I’d also say be prepared. Take those steps now. When OSHA shows up at the door, they’re a hammer looking for a nail, and if you haven’t taken those, if you haven’t done those preemptive steps to see where your shortcomings are, while you may be in compliance in certain areas, there may be things that are difficult to explain or difficult for OSHA to understand. And if you’ve had a third party come in and take a look and say, “Well, what about this?” It helps when OSHA does come knocking that you’ve been through it before. So a dry run for a wall-to-wall facility inspection would be my recommendation.

Frank Davis: Yeah, that’s a pretty good idea because with every one of the ergonomic citations I’ve seen, they were all accompanied by alleged shortcomings in guarding and alleged shortcomings in energy control procedures, and to the extent that they’re able to work it in, alleged shortcomings in recordkeeping. So if I was going to start looking at my programs, that would be the top of my hit list. And to your point, Ryan, I think having a fresh set of eyes come in and look at some of these issues makes a lot of sense. And obviously, there are experts out there, or sometimes you may have your lawyers do it for a really privileged look at things, for a privileged, fresh look.

Gentlemen, thank you for your work on this blog. Thank you for bringing this to our attention. And when is the blog going to be posted, John?

John Surma: I think it’s going to be posted, I think it will be posted before this podcast is published.

Frank Davis: You can look online for John and Ryan’s blog. It’s well-written, it’s easy to follow, and it’ll give you a starting point for beginning to, let’s say, enhance any programs that might need enhancement at your facility.

So, thanks for listening. John and Ryan, thank you for speaking with me today. I look forward to our next OSHA Dallas Region podcast.

John Surma: Take care of yourself, Frank.

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