June 6, 2024Client Alert

Bird Flu Outbreak Sparks Call for Dairy Farms to Protect Workers

Avian Flu (H1N1) Virus Cases - Wisconsin

Wisconsin has had had nearly 350,000 cases of bird flew in large commercial flocks in WI; (2) however we have had no dairy herd or human cases in Wisconsin as of this week; (3) the dairy industry in Wisconsin generates about $45 billion in revenue annually, so we take this very seriously and farmers are working hard to maintain the zero case status (4) there was a case of bird flu in a dairy worker in our neighboring state of Michigan last week which, of course, causes some concern; (5) that worker had mild symptoms of an eye infection; (6) due to detection of fragments of the virus in milk samples tested in other parts of the U.S. over the past 60 days, USDA has restricted movement of lactating cows by requiring testing for the virus before moving across state lines to another farm; (6) 21 states so far have restricted the import of cows from some other states, but currently Wisconsin cows have not been impacted. Historically, avian flu has been around since 1996, but the first reported bird case in the U.S. was 2021, and since then we have seen outbreaks in commercial bird flocks. In Wisconsin, we had one such outbreak that resulted in 3 million hens having to be destroyed after the virus was detected. 

Avian Flu in Dairy -  National

The first case in a dairy cow was reported in March 2024 in the Texas Panhandle, but USDA thinks it was likely circulating in herds in Texas since late 2023. 

The good news is that: the only 2 workers so far that have contracted the illness in the US (in TX and MI) have simply had an eye infection; the infections were mild; there is no evidence of human-to-human infection; cooking, or in the case of milk, pasteurization, destroys the virus. So, milk purchased in stores is not going to transmit the virus. However, historically, over the last 30 years, the virus has caused serious respiratory, intestinal illnesses and even death in people outside the U.S.      

For workers that are working with dairy cows or birds there is no specific contagious disease standard, but there are parts of the OSH Act and its regulations that OSHA is likely to apply in the event of human infection, especially in the 9 states that have had already had outbreaks so far as reported by the USDA (ID, CO, NM, SD, KS, TX, MI, OH, NC) .  We suggest farmers consider evaluating the following compliance requirements (other requirements under USDA and CDC guidelines were previously addressed in a Michael Best Alert found here and will be addressed in future alerts as they develop):

Compliance Requirements for Worker Safety

1.) The General Duty Clause, Section 5(a)1 of the Occupational Safety and Health Act, requires employers to address recognized hazards that may cause death or serious bodily injury. As with COVID, OSHA is likely to look to Centers for Disease Control (CDC) guidance, and potentially cite farms that do not follow CDC recommendations found here. These recommendations include:

  • Avoid direct physical contact with sick birds and animals or carcasses, feces or litter, raw milk, surfaces and water that might be contaminated with animal excretions
  • Where appropriate personal protective equipment (PPE)
  • Training of workers
  • Posting signage

2.) OSHA’s Personal Protective Equipment (PPE) Standard (29 CFR 1910.132) requires:

  • A hazard assessment (risk assessment) to determine the PPE that is needed.The CDC recommends considering the need for PPE as follows:  
    • Disposable or non-disposable fluid-resistant coveralls, and depending on task(s), add disposable or non-disposable waterproof apron
    • Any NIOSH Approved® particulate respirator (e.g., N95®or greater filtering facepiece respirator, elastomeric half mask respirator with a minimum of N95 filters)
    • Properly-fitted unvented or indirectly vented safety goggles or a faceshield if there is risk of liquid splashing onto the respirator
    • Rubber boots or rubber boot covers with sealed seams that can be sanitized or disposable boot covers for tasks taking a short amount of time
    • Disposable or non-disposable head cover or hair cover
    • Disposable or non-disposable gloves
  • Training – employers are required to train workers about the PPE selected, reasons for wearing PPE, the PPE that is available, and how to properly wear it; how to safely put it on and take it off, as well as cleaning and disposal.   
  • Handling of contaminated equipment and laundry. 

3.) OSHA’s Sanitation standard (29 CFR 1910.141) requires among other things:

  • All sweepings, solid or liquid wastes, refuse, and garbage shall be removed in such a manner as to avoid creating a menace to health and as often as necessary or appropriate to maintain the place of employment in a sanitary condition. (Spraying surfaces where manure is present may spread virus, such that it may get in workers’ eyes, mouth or nose. Face shields are recommended if this cannot be avoided)
  • Bathrooms are required for worker use and “each lavatory shall be provided with hot and cold running water, or tepid running water; “hand soap or similar cleansing agents shall be provided”.
  • Individual hand towels or sections thereof, of cloth or paper, air blowers or clean individual sections of continuous cloth toweling, convenient to the lavatories, shall be provided.

Those employers that are not in the 9 states that have already experienced an outbreak, should consider that H1N1 is not going to go away, and it is probably only a matter of time before it hits herds in every state. At the present time, new outbreaks on farms are being reported every day, there is no reason to expect the spread of the illness to stop for at least a few months. Even if, as was the case with COVID, the summer months see a downturn, birds are migratory, and with the introduction of the virus in the U.S., this virus is likely to hit every state that has a commercial herd or flock eventually.  The uptick in cases, generally coincides with bird migration, so we may not see outbreaks in other states until next spring, especially if the USDA restrictions are effective. But over time, each new migration brings more risk of new infections and outbreaks. The above practices should be developed while you have time to work through them, rather than having to quickly respond in an emergency situation. 

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