With the emergence of bovine influenza-H5N1 in dairy herds and ongoing outbreaks of HPAI in poultry flocks, legal experts are examining the implications of workers contracting the infection. This is notwithstanding the paucity of cases and mild symptoms to date. In a review authored by Charles Palmer of the law firm Michael Best and Freidrich, obligations of employers are considered with respect to the possible emergence of a zoonotic infection.
Section 5 (a) 1, the General Duty Clause of the Occupational Safety and Health Act places an onus on employers to respond to obvious hazards that may impact workers. At the present time, it is not apparent that HPAI H5N1 in either poultry flocks or dairy herds is directly transmissible to workers despite three cases diagnosed and with one case associated with depopulation of a flock infected with HPAI. All cases were mild and there was no evidence of person-to-person transmission. In terms of the General Duty Clause, employers will be held to standards as issued by the Centers for Disease Control and Prevention. Current recommendations include: -
- Avoiding direct physical contact with sick birds and animals. This is obviously inappropriate where crews are used to depopulate flocks diagnosed with HPAI. The situation is unclear with respect to large herds in which there is a low prevalence of infection. Is it permissible to segregate affected cows and designate trained personnel to their care?
- Wearing appropriate personal protective equipment (PPE) that should be supplied by the employer. This is an area where employers could be subject to criminal and civil action in the event of failure to either supply PPE or train workers in their effective use.
The OSHA PPE standard (29CFR 1910.132) requires: -
- Disposable or non-disposable and fluid resistant coveralls and depending on circumstances, waterproof aprons and head gear.
- NIOSH approved particulate respirator with a minimum of N95 filtration.
- Properly fitted, unvented safety goggles or a face shield in the event of splashing of biologic fluids onto the respirator.
- Rubber footwear with sealed seams that can be sanitized.
- Disposable or non-disposable head covers.
- Disposable or non-disposable gloves.
Employees should be trained in donning and working with PPE.
CLS-Seqirus Vaccine Plant NC |
OSHA sanitation standard (29CFR 1910.141) requires collection and appropriate disposal of both solid and liquid wastes in such a manner as to prevent direct contact with eyes and respiratory surfaces. The sanitation standard requires bathrooms with hot and cold running water and soap and cloth or paper towels. The requirement includes “air blowers”. These units are potentially capable of disseminating virus particles entrained on dust and should be eliminated from the sanitation standard.
The poultry industry has gained sufficient and bitter experience in the possible location and timing of outbreaks and accordingly, structural and operational biosecurity is practiced and is intensified under conditions of high risk. The situation with respect to the dairy industry is less certain. More than 90 herds have been diagnosed with bovine influenza-H5N1 and the disease is now present in 12 states. In the absence of a structured surveillance program, the actual extent of infection among dairy herds and possibly beef herds is unknown.
During the 2020 COVID outbreak, workers in red meat packing plants and poultry processing facilities were vulnerable to infection based on proximity of workstations and working in cold, high-moisture environments. With confusion over county and state officials to order plants closed and with plummeting hog and beef throughput on April 28th 2020 a Presidential Executive Order was released in accordance with the Defense Procurement Act mandating plants to continue operation. This Order extended indemnity to employers against claims by sick workers provided that facilities were operated in accordance with CDC standards. At the time, these were based on human influenza and involved masking, distancing and monitoring of health.
In the absence of similar indemnification, employers will be vulnerable to both civil and criminal action in the event of exposure of workers to H5N1 in the absence of appropriate protective measures.
Cell-based vaccine production CSL-Seqirus |
Should a zoonotic strain of H5N1 emerge, protective vaccination will be deployed from a bulk stock of 5 million doses currently being packed by CLS-Seqirus in North Carolina. The E.U has ordered vaccine from the Company with delivery scheduled over a four-year period. Finland intends offering vaccine to workers and farmers in contact with dairy herds, mink and poultry in addition to employees of packing plant, veterinarians, laboratory personnel and first responders.
As a simple precautionary measure, all workers in contact with poultry, dairy herds and other at- risk personnel and their families should receive the annual multivalent influenza vaccine when available in the fall. This will preclude an extremely rare but possible recombinant event between a human influenza strain and a poultry or livestock strain with the potential for emergence of a new virulent zoonotic virus.