March 28, 2023Client Alert

Wisconsin Food Businesses Under Fire

The Occupational Safety and Health Administration thinks Wisconsin food manufacturing businesses are unsafe places to work.  Indeed, the food manufacturing industry in Wisconsin ranked as the industry with one of the highest injury rates in the state.  This conclusion was based on Bureau of Labor Statistics data from 2020 for food manufacturing industries with North American Industrial Classification System (NAICS) codes in the 311XXX range.[1]  According to OSHA, food manufacturing industries (middle column) had incident rates exceeding the average for all private manufacturing NAICS codes (right column) in Wisconsin in each of the categories listed in the left column: 

Private Manufacturing Rates in Wisconsin in 2020

OSHA Food Manufacturing Inspection Emphasis Program

In response to this data, OSHA launched an emphasis program to target Wisconsin’s food manufacturing industry for inspections.  The Emphasis Program commenced in April 2022, with an initial outreach phase, and inspections began in July 2022.  In the 9 months since the inspections commenced, a pattern of cited violations has emerged (see chart below). This chart provides the industry a sense of the areas to focus on in preparing for an inspection. 

Hazards Cited at Food Manufacturing Operations

Assessing your Level of Compliance

Obviously, this should be notice to the industry to focus upon the following standards:

  • hazard communication (HAZCOM);
  • personal protective equipment (PPE);
  • confined space;
  • lockout/tagout (LOTO);
  • machine guarding;
  • fall protection. 

Our team has represented hundreds of food manufacturers over my 33 years of experience defending and counseling employers in Occupational Safety and Health matters.  Through that experience, we have identified litmus test questions that help quickly identify where a company is at in its safety and health journey. 

Here are the litmus test questions we generally ask about in preparing for an OSHA compliance audit for the above hazard areas:

HAZCOM:  Do you have an accurate chemical inventory of all chemicals onsite with matching safety data sheets identifying hazards for each chemical on the list, and evidence all employees have been trained on chemical hazards in their work area?

PPE: Do you have written PPE certifications that identify the workplace evaluated; the person certifying that the evaluation has been performed; the date(s) of the hazard assessment; and, which identifies the document as a certification of hazard assessment?

Confined Space:  Do you have permit required confined spaces (PRCS) that are properly marked as PRCS and entry permits showing when the space was entered during the last year and corresponding documented entry permits showing who entered, air monitoring results, PPE worn, the time of entry and exit, the contact under the rescue plan and the name of the employee monitor?

LOTO:  Do you have a written machine-specific lockout procedure for each type of multiple energy source machine and a documented periodic review of each procedure identifying an authorized employee observing another authorized employee perform lock out, verifying that procedures were followed according to the written document, and a certification at the bottom of that periodic review that it was completed, employee names (performing and observing), the date that it was completed, and any corrections made?

Machine Guarding:  Have you performed a machine guarding audit within the recent past identifying that all machines, conveyors, rotating shafts, pinch points, robotics, palletizers, are guarded, and employees are not able to reach in, under, over, or around the machine guard, light curtain, interlocked gate or door, or other protective device, while the machine is in operation?

Fall Protection: Where you have ladders, floor openings or open sides on elevated platforms or walkways (especially those over 4 feet high) are they protected on all sides by a fixed rail (top and midrail) system, swing gates or other fall protection, fall restrain or fall arrest systems? 

What to do?

If no one in your organization understands the nuances of these questions fully, or cannot answer them with certainty, it is a good idea to get assistance.  Options are:

  • The Wisconsin OSHA Consulting Program – this program is available to employer locations with less than 250 employees free of charge.  It is not available once an OSHA inspection has commenced and until it is closed, and you must correct the hazards that are identified, or they may be reported to OSHA.  If you don’t correct the hazards, OSHA could cite you during a latter inspection for willful violations.  The advantage is that OSHA will not inspect under emphasis programs while the audit is pending, unless there has been a complaint, referral or injury that triggered the inspection.
  • Insurance Broker/Insurance Company Safety Consultant – generally these are resources that are available at low or no cost.  Your results may vary depending upon the expertise of the individual provided by your insurer or broker.  These audits are generally not confidential and may be a helpful roadmap to OSHA if you have failed to respond to the recommendations in the report.
  • Private Safety Consultants – there are some excellent private safety consultants in Wisconsin who have expertise in the food and beverage industry.  Again, the results of these audits can be demanded by OSHA and used as a roadmap to cite you.  If the consultant is engaged by your legal counsel, there are methods to protect the audit under the attorney/client privilege, or as attorney work product, since you are in an industry that is being targeted by the government.

[1] Of course, we were in the middle of a pandemic in 2020.  Food manufacturing was an essential industry and was put under great stress factors to feed the country as products flew off the grocery store shelves.   

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