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MWidra

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Posted 28 May 2015 - 09:55 PM

This question is for those employers who are in the United States.

 

This section of the BRC standard talks about "procedures for employees, contractors and visitors relating to action to be taken where they may be suffering from or have been in contact with an infectious disease.  Expert medical advice shall be sought when required" (italics mine for emphasis).

 

This is such a touchy subject.  In my state, you cannot ask anyone about their HIV status, no matter what, even though it is an infectious disease.  For employees, you cannot ask about anything that could identify a disability unless it involves their fitness to perform a job.  There are a limited number of diseases that the CDC has listed that would allow an employer to assign a worker to another task not handling food, and most of them are not what make people sick at work.  And they only talk about a worker who has the disease, not exposure to the disease. 

 

So, for my fellow Americans who are certified BRC, how do you handle this?

 

Martha


"...everything can be taken from a man but one thing:  the last of the human freedoms--to choose one's attitude in any given set of circumstances, to choose one's own way."  Viktor E. Frankl

 

"Life's like a movie, write your own ending."  The Muppets


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Posted 29 May 2015 - 07:20 AM

This question is for those employers who are in the United States.

 

This section of the BRC standard talks about "procedures for employees, contractors and visitors relating to action to be taken where they may be suffering from or have been in contact with an infectious disease.  Expert medical advice shall be sought when required" (italics mine for emphasis).

 

This is such a touchy subject.  In my state, you cannot ask anyone about their HIV status, no matter what, even though it is an infectious disease.  For employees, you cannot ask about anything that could identify a disability unless it involves their fitness to perform a job.  There are a limited number of diseases that the CDC has listed that would allow an employer to assign a worker to another task not handling food, and most of them are not what make people sick at work.  And they only talk about a worker who has the disease, not exposure to the disease. 

 

So, for my fellow Americans who are certified BRC, how do you handle this?

 

Martha

 

Hi Martha,

 

Apologies in advance but It seemed to me yr query might also have some global interest so i took a little liberty  -

 

Perhaps the general requirement of section 7.3 is also relevant to interpretation (ex. UK version of BRC7) –

 

The company shall have procedures in place to ensure that employees, agency staff, contractors or visitors are not a source of transmission of food-borne diseases to products.

 

 

As compared to BRC6, 7.3, 7.3.1, 7.3.3 look essentially unchanged. 7.3.2 has been modified, notably by the addition of my  "Note" below.

So presumably yr query also applied for BRC6.

 

It appears that 7.3.1 is the intended expansion for employees. (Note the word "relevant")

And 7.3.2 is the intended expansion for visitors and contractors (Note the new "Where permitted by law" for the former)(Agnes's Excel file implies not new but i think I'm correct or perhaps local versions differ)

Contractors appear unclarified. Equivalent to employees perhaps.

 

i agree the 7.3.3 text (for all 3 categories) is confusing/contradictory when compared to 7.3 general, and previous sub-paragraphs also.

I suspect 7.3.3 is a "catch-all" paragraph.

 

The subtleties, if any, are hopefully clarified in  the Interpretation Guidelines ?  :dunno:

 

JFI, this is afaik the (2013) CDC viewpoint on HIV / Food -

 

http://www.ifst.org/...nd-food-handler

 

PS - I guess ADA  = ADA.gov ?


Kind Regards,

 

Charles.C


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Posted 29 May 2015 - 10:00 AM

ADA = Americans with Disabilities Act.

 

7.3.3 requires a "documented procedure". 
I put the attached tables in my document that covers this clause.

Attached Files



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Posted 29 May 2015 - 10:02 AM

The  relevant part of the Food Code is here.

 

Marshall



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Posted 29 May 2015 - 10:14 AM

The  relevant part of the Food Code is here.

 

Marshall

 

Just asking,

 

From memory of other threads, the Code has a defined  Industry Scope (Retail?) and may be legally changed from State-to-State ?


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Charles.C


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Posted 29 May 2015 - 10:44 AM

Just asking,

 

From memory of other threads, the Code has a defined  Industry Scope (Retail?) and may be legally changed from State-to-State ?

The model Food Code is just that, a model.  It has defined target industries (food service and retail.)  It may not be legally changed by a state because it's a Federal item, but it's not binding.  It's not a regulation or a law, it's not even a guideline.

 

BUT, it was made with the ADA compliance built into it.  If you looked at Marshall's tables, these are only for reported situations, not for anything that the employer suspects.

 

That was one of the problems, there are laws out there that govern food service and retail, but none that govern manufacturing.  And none of them included employer actions if they suspected a disease, or what you can ask of an employee.

 

This part of the Food Code and the MD regs about this issue mirror the CDC guideline and refer to their list of communicable diseases.  But they don't talk about how you learn of the illness.  That's the crux of the matter.

 

Martha


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MWidra

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Posted 29 May 2015 - 10:59 AM

ADA = Americans with Disabilities Act.

 

7.3.3 requires a "documented procedure". 
I put the attached tables in my document that covers this clause.

Thank you Marshall.  This is probably suitably extensive enough to satisfy an auditor (and because I'm starting a new BRC program it will be scrutinized more).  This was EXACTLY what was needed.

 

As long as I reference the Food Code, I think I'll be safe from auditor pickiness.

 

Why is this such an issue?  For those from other countries, this may be puzzling.

 

We do treasure our right to privacy here in the US, and MD is one of the more restrictive states.  MD was the first to ban an employer demanding social network logons and passwords from employees, for example, and you can NEVER ask a MD citizen about their HIV status.  Both are statutes passed by the legislature, not regulations.  MD is not called the Free State for nothing, lol.

 

The US was the first nation to protect disabled citizens from discrimination.  The ADA dates back to 1990.  The ADA includes a deeply ingrained protection from intrusion into disability status, and there is a balance between it and the public health considerations.

 

Martha


"...everything can be taken from a man but one thing:  the last of the human freedoms--to choose one's attitude in any given set of circumstances, to choose one's own way."  Viktor E. Frankl

 

"Life's like a movie, write your own ending."  The Muppets


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Posted 29 May 2015 - 11:08 AM

Hi Martha,

 

It is maybe important to remember one of the major objectives of the BRC Standard but which is not necessarily applicable in USA - "Due Diligence".

 

Not defending the Standard, just explaining it. :smile:


Kind Regards,

 

Charles.C


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Posted 29 May 2015 - 12:03 PM

Martha,

 

FWIW, here is an unofficial interpretation of para 7.3.3 as per BRC6

 

Attached File  7.3.3.pdf   177.38KB   75 downloads


Kind Regards,

 

Charles.C


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Posted 29 May 2015 - 12:40 PM

Hi Martha,

 

It is maybe important to remember one of the major objectives of the BRC Standard but which is not necessarily applicable in USA - "Due Diligence".

 

Not defending the Standard, just explaining it. :smile:

So, I can count on the Standard being a performance based standard, and not a compliance based standard?

 

And actually, since many US regs are performance based, due diligence is a big concept here.  But so many of the non-US food standards appear and are written as if they were compliance based, that I don't want to assume that level of conformance unless I can be assured that it will fulfill the requirements. 

 

Martha

 

Martha


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Posted 29 May 2015 - 01:01 PM

Martha,

 

Due Diligence has a legal significance in UK.

 

I deduce that both our interpretations of para. 7.3.3 were incorrrect. :smile:


Kind Regards,

 

Charles.C


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Posted 29 May 2015 - 01:23 PM

Up here in Canada the federal government has built in a REQUIREMENT that all employees SIGN a statement of health for federal meat processing plants. I have a form that simply states that they are free from transmittable diseases at the time of hire and that they understand that they are to report continuous coughing, vomiting or diarrhoea to the supervisor and/or not report to work. The employee could then opt not to sign and therefore not be employed as it is a requirement for employment at our facility.

My visitor record also includes a statement of health that each person is signing for prior to entering the facility. Again, this is a Canadian federal government requirement. It therefore trumps any privacy issues. We have covered the requirement, and should someone falsify and document that is legally binding ( as they are here) they would be personally liable should an outbreak be traced back to them.


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Posted 29 May 2015 - 01:26 PM

Martha,

 

Due Diligence has a legal significance in UK.

 

I deduce that both our interpretations of para. 7.3.3 were incorrrect. :smile:

It has a legal significance in the US, but it depends on what it is applied to.  There is a slightly different definition in civil law than in contract law, for example.  And for administrative law, it is applied as an important factor that allows you to be compliant by performing actions that satisfy the intent of the reg rather than the letter of it when it is a performance based standard.  If it is a compliance based standard, you have to do exactly what the standard says, just due diligence is not enough.  Compliance based means that close gets no cigar, as it were.

 

Thank you for giving me that interpretation, because I would have to pay £95 to be able to see that.  :)

 

Martha


"...everything can be taken from a man but one thing:  the last of the human freedoms--to choose one's attitude in any given set of circumstances, to choose one's own way."  Viktor E. Frankl

 

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Posted 29 May 2015 - 01:36 PM

Also bear in mind the diseases like HIV are not passed through food and if all the GMP's are followed correctly someone who has HIV posses no threat to public health. I would hazard that the requirement is speaking directly to diseases transmitted by food and not ALL infectious diseases.


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MWidra

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Posted 29 May 2015 - 01:37 PM

Up here in Canada the federal government has built in a REQUIREMENT that all employees SIGN a statement of health for federal meat processing plants. I have a form that simply states that they are free from transmittable diseases at the time of hire and that they understand that they are to report continuous coughing, vomiting or diarrhoea to the supervisor and/or not report to work. The employee could then opt not to sign and therefore not be employed as it is a requirement for employment at our facility.

My visitor record also includes a statement of health that each person is signing for prior to entering the facility. Again, this is a Canadian federal government requirement. It therefore trumps any privacy issues. We have covered the requirement, and should someone falsify and document that is legally binding ( as they are here) they would be personally liable should an outbreak be traced back to them.

Canada has made it easy for you.  I have new employees sign an agreement that they will follow our sanitation and personal hygiene policy, so if they don't comply they can't say they did not know about it and they can be fired for it for cause.  But we can't require them to divulge medical information unless it will impact their ability to perform the tasks they will be doing.

 

No matter, in the US, the employer is liable for anything that an employee does, so if they don't report a disease that taints food, we are still liable for damages, under respondeat superior.  And under product liability doctrines as well.  There are personal consequences for having a communicable disease and intentionally handling food, but they are mostly quarantine and inability to find a job.

 

The story of Mary Mallon, a.k.a. Typhoid Mary, is instructive, she was confined to a hospital in quarantine for 23 years because of it.  I use it as a story of why we need to wash our hands.

 

http://en.wikipedia....ki/Typhoid_Mary

 

Martha


"...everything can be taken from a man but one thing:  the last of the human freedoms--to choose one's attitude in any given set of circumstances, to choose one's own way."  Viktor E. Frankl

 

"Life's like a movie, write your own ending."  The Muppets


MWidra

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Posted 29 May 2015 - 01:39 PM

Also bear in mind the diseases like HIV are not passed through food and if all the GMP's are followed correctly someone who has HIV posses no threat to public health. I would hazard that the requirement is speaking directly to diseases transmitted by food and not ALL infectious diseases.

Unfortunately, the standard is extremely vague and broad, probably to be able to cover the diseases that are of interest locally.

 

HIV is of no threat in food manufacture, but even if it were, I could not ask anyone about it in MD.

 

Martha


"...everything can be taken from a man but one thing:  the last of the human freedoms--to choose one's attitude in any given set of circumstances, to choose one's own way."  Viktor E. Frankl

 

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Posted 29 May 2015 - 02:20 PM

Martha,

 

I had a look around for the BRC interpretation of "due diligence".

 

Attached File  due diligence legality.pdf   251.25KB   42 downloads

 

A somewhat more earthy appraisal is here -

 

http://www.ifsqn.com...-due-diligence/

(notably post #2)

 

And Yes, compared to the SQF standard, BRC is IMO  (accidentally or "otherwise") frequently obscure. And at an annoying cost.

 

Hopefully, some(rich)one will eventually pass by and Verify that the same text in BRC6 confers the same meaning in BRC7. :smile:


Kind Regards,

 

Charles.C


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Posted 29 May 2015 - 03:37 PM

Hi Martha,

 

If you are starting BRC7 from scratch, the attachment below for BRC6 may be of some value. Obviously useless for new additions appearing in ver. BRC7 but perhaps of interest for "static" clauses.

 

Attached File  BRC6, requirement matrix.xls   123KB   80 downloads

 

 

 

 


Kind Regards,

 

Charles.C


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Posted 29 May 2015 - 03:38 PM

FWIW, here is the interpretation from Issue 7.

 

7.3.1

"Personnel need to receive, as part of their training, clear instructions on the potential risks of food borne disease and the site’s procedures for notification where the employee may be suffering from
symptoms which may place products at risk and would prevent a person from working with open food.
The site must be expected to defie the symptoms or infections of concern, as advised by local legislation (e.g. list of communicable diseases).
These policies must be documented.
This requirement covers all employees (including temporary staf and those employed via an employment agency).
The site may consider use of a pre-employment and/or return-to-work medical questionnaire or medical examination (e.g. stool testing), as appropriate to the risk.
The use of suitably trained and competent persons and external medical experts may be required, particularly where privacy laws exist."

 
7.3.2
"The site must ensure that visitors and contractors who enter areas where there may be a risk to product safety, or who undertake work that may constitute a risk to product, are informed of the site’s policies

and the medical conditions (e.g. the symptoms) that would prevent entry into production, storage or open product areas.
Where permittd by legislation visitors must be screened by use of a health questionnaire. The site must ensure that regular visitors and contractors, such as external company staff or pest control providers, are included.
Where questionnaires are used, these must be reviewed by a competent person.
The procedure must be documented."

 

7.3.3

"Where staff visitors or contractors declare they are suffering from, or have been in contact with, the identified diseases, infections etc., they must be subject to, and informed of, the procedures to prevent

product contamination. This will usually include relocation to a role where they are not in contact with open products."

 

So my interpretation of the interpretation is that you train your employees what the symptoms of food borne illnesses are, and then require them to self-report. 

 

Where permitted by law, you have your visitors/contractors sign a form that lists symptoms of food borne illnesses. They then self-report if they want to get into the facility. If they don't want to self-report, they can refuse to sign the form, in which case, they are not allowed in the facility.

 

If you have people that self-report, you have to have a procedure in place that says where those people may or may not go in the facility and what jobs they may or may not due.

 

Marshall

 



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MWidra

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Posted 29 May 2015 - 04:49 PM

Thanks Charles and Marshall. 

 

Once we have performed our first certification audit, there's a fee that is tacked onto it which I think allows us access to those documents free.  For now, I'm going over the standard with multiple passes, while writing programs and collecting information as I go.

 

All the other departments are getting tired of me asking a lot of questions, and I'm not done pass 2 yet.  ;)

 

I figure it will take about 5 passes to be comfortable with the entire program, since I'm doing this de novo.

 

Marshall, your interpretation of the interpretation sounds excellent.  I'm going to base my doc on it.  Thanks.

 

Martha


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Posted 29 May 2015 - 05:00 PM

Martha,

 

I had a look around for the BRC interpretation of "due diligence".

 

attachicon.gifdue diligence legality.pdf

 

A somewhat more earthy appraisal is here -

 

http://www.ifsqn.com...-due-diligence/

(notably post #2)

 

 

That's interesting, that in the UK you can use a due diligence defense in a product liability case.  In the US, product liability is a form of strict liability, that if the product caused harm, as long as it was used in the manner that it was intended to be used, EVERYONE down the product chain is liable for damages.  That includes the people who made the parts all the way down to the retailer.  That's why everyone here has liability insurance.  Thus the saying, 'sue them all and let the judge sort it out.'

 

Legal information from Cornell Law School.  If you ever have questions about US law, check out the Cornell Law School Legal Information Institute.

 

https://www.law.corn...ducts_liability

 

Martha


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Posted 29 May 2015 - 10:52 PM

Martha,

 

It's called BRC Participate. I think the annual fee is roughly $150, and you don't need to be certificated to gain access. 

 

Well worth the cost. Expense it.

 

Marshall





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