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Mitigating COVID-19 Related Litigation Risk in the Food Industry: Follow FDA Best Practices

April 15, 2020

On April 9, 2020, the U.S. Food and Drug Administration (FDA) shared recommendations on best practices for food retail stores, restaurants, and food pick-up and delivery services during the COVID-19 pandemic. According to the FDA, companies should follow these practices to better protect their food industry workers and consumers. Further, compliance with these policies could also reduce the risk of future litigation if, for example, plaintiffs seek to hold companies responsible for the spread of COVID-19.

FDA’s best practices are divided into four main categories:

(1) Managing Employee Health

FDA recommends that companies instruct employees with COVID-19 symptoms to report their symptoms to their supervisors, and to stay at home. FDA also suggests that upon learning that an employee is sick, the employer should send that person home and disinfect the workplace. FDA references CDC guidelines for cleaning and disinfecting workspaces.

FDA also suggests that an employer should notify other employees of possible exposure to COVID-19, while maintaining confidentiality of the infected employee. To prevent further spread of COVID-19, FDA recommends that employers pre-screen employees before starting work (for example, by taking their temperatures), and disinfect work spaces and equipment, with a particular focus on “high touch” surfaces. FDA also calls for employees to self-evaluate for COVID-19 symptoms, wear face masks, and practice social distancing when possible.

(2) Personal Hygiene for Employees

Consistent with requirements for food worker personal hygiene, FDA recommends that employers instruct employees to wash their hands with soap and water for at least 20 seconds after using the restroom, before eating, and directly after coughing or sneezing. Employees should use an alcohol-based hand sanitizer if soap and water are not readily available. Employees should always cover coughs and sneezes with tissue, and immediately dispose of the tissue and wash their hands after. Employees should further avoid touching their face, and use gloves to avoid contact with food.

(3) Managing Operations in Retail Food Establishments

Consistent with requirements for safe food preparation, FDA says food establishments should engage in four key steps to ensure safe food handling: (a) clean by washing hands and disinfecting cooking surfaces often; (b) separate raw meats from other foods; (c) cook foods to the proper temperature; and (d) chill perishable foods at the proper temperature in the refrigerator or freezer.

Further, FDA recommends that food establishments sanitize food preparation surfaces and equipment after use, and frequently disinfect surfaces that are regularly touched by employees or customers, such as shopping cart handles and door knobs. Particularly in retail stores, companies can better protect customers by removing buffets, salad bars, or self-service food and drink stations, according to FDA. In addition, FDA recommends that stores take action to create spacing between customers in the store, such as limiting the number of customers allowed at a time.

(4) Managing Food Pick-Up and Delivery

Recommendations for employee health and hygiene described above also apply to food pick-up and delivery services. In addition, FDA suggests that food retailers and restaurants stablish designated pick-up areas to help customers maintain social distancing, and that delivery workers also practice social distancing – for example, by sending electronic alerts when food is delivered, rather than physically handing food to the customer. Retailers and restaurants should also ensure that the packaging used for transporting food prevents contamination, according to FDA. Insulated coolers or bags that are re-used in food delivery should be routinely cleaned and sanitized.

Adhering to these practices can better protect the health of retail food industry employees and consumers. Companies following these practices can also demonstrate their diligence in addressing the conditions of the COVID-19 pandemic, and mitigate the risk of future COVID-19 related lawsuits.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

John Fuson
Partner – Washington, D.C.
Phone: +1.202.624.2910
Emily Tucker
Associate – Washington, D.C.
Phone: +1.202.688.3445