Smithfield noted that the citation – which comes with a penalty of $13,494 - references conditions in its Sioux Falls, SD, plant prior to March 23, and argues that OSHA did not issue official guidelines for the meatpacking industry for another month (April 26), leaving companies to work out what they should be doing on their own.
Keira Lombardo, EVO corporate affairs and compliance, said: “Despite this fact, we figured it out on our own. We took extraordinary measures on our own initiative to keep our employees as healthy and safe as possible so that we could fulfill our obligation to the American people to maintain the food supply. We incurred incremental expenses related to COVID-19 totaling $350 million during the second quarter alone. Ironically, OSHA then used what we had done as a model for its April 26 guidance.”
She added: “The fact is that the Sioux Falls community experienced an early spike in COVID-19 cases, which impacted our plant. We responded immediately, consulting with CDC, South Dakota Department of Health, USDA and many others.”
NAMI: OSHA is engaged in ‘revisionism’
North American Meat Institute (NAMI) president and CEO Julie Anna Potts in turn accused OSHA of engaging in “revisionism.”
She added: “Notwithstanding inconsistent and sometimes tardy government advice… when the pandemic hit in mid-March, meat and poultry processing companies quickly and diligently took steps to protect their workers. Companies had to overcome challenges associated with limited personal protective equipment, they implemented screening systems to keep sick employees out of plants, developed COVID-19 plans with administrative and engineering controls to protect workers which included, but were not limited to, the CDC/OSHA guidelines.
“Most importantly, as evidenced in trends in data collected by the Food and Environment Reporting Network and The New York Times, these many programs and controls once in place worked and continue to work. Positive cases of COVID-19 associated with meat and poultry companies are trending down compared with cases nationwide.”
UFCW: OSHA fine is ‘insulting and a slap on the wrist’
However, the United Food and Commercial Workers (UFCW) International Union, which represents 1.3m workers in meatpacking plants and other essential businesses, blasted the fine as “completely insufficient in the wake of the company’s failure to protect meatpacking workers at its Sioux Falls, South Dakota [plant], which reported nearly 1,300 COVID-19 infections and at least four deaths among its employees.”
As the union for Smithfield workers at the Sioux Falls plant, UFCW said the $13,494 penalty (the maximum allowed by law, according to OSHA*) was “insulting and a slap on the wrist that will do nothing to help those already infected or prevent future worker deaths.”
UFCW International President Marc Perrone added: “How much is the health, safety, and life of an essential worker worth? This response by OSHA confirms that the company will not face any real consequences.”
In a statement issued yesterday, Senator Elizabeth Warren (D-MA) added: "This meager, months-too-late fine isn't enough and if OSHA were serious about doing its job, it would aggressively ramp up its investigation and enforcement activity to hold giant meatpackers accountable and issue an Emergency Temporary Standard with enforceable health and safety protections."
OSHA: Smithfield ‘failed to provide a workplace free from recognized hazards that can cause death or serious harm’
According to the citation, Smithfield – which has 15 business days to comply, request an informal conference with OSHA's area director or contest the findings before the independent Occupational Safety and Health Review Commission - “failed to provide a workplace free from recognized hazards that can cause death or serious harm.”
COVID-19 and employer liability
The issue of COVID-19-related liability in the food industry – a segment of the economy that has kept going as many other industries have been forced to hit 'pause' – has become particularly pertinent in light of the President’s April 28 executive order on meat plants, which generated headlines along the lines of ‘Trump compels meat plants to stay open' (although it did not state that plants must remain open if workers are sick).
The order made no reference to meat plants’ legal liability should workers claim they contracted COVID-19 due to employer negligence, although the president told reporters in mid-April that the order would “solve any liability problems" they might have.
So far, only a handful of cases have been brought against meat companies over COVID-19 so it's too early to say how the courts will treat them. However, a judge recently dismissed a worker safety lawsuit** filed by an unnamed worker at the Smithfield meat processing plant in Milan, Mo., on the grounds that such matters are for federal regulators, not local courts, to decide. (Read more HERE.)
The issue of liability protections for employers is one of many sticking points in talks over government stimulus packages, with some Republicans including Senate majority leader Mitch McConnell strongly in favor of a liability shield, and Democrats strongly opposed.
Food retail and wholesale trade association FMI The Food Industry Association argues that businesses that have acted in good faith to follow rapidly evolving local, state, and federal guidance “should not have to face lawsuits that second guess these efforts after the fact,” while Washington DC-based health advocacy group The Center for Science in the Public Interest (CSPI), believes liability shields would encourage bad actors and deprive people of redress for negligent conduct.
According to a Sept 4 report from law firm Littler Mendelson PC, there have been 638 lawsuits (including 72 class actions) filed against employers due to alleged labor and employment violations related to the coronavirus since March 12.
*Dr. David Michaels, an epidemiologist at the George Washington University School of Public Health who headed OSHA from 2009 through 2017, however, issued a statement via the National Council for Occupational Safety and Health, arguing that the fines could have been higher: "OSHA could have issued numerous citations, one for each of the many ways in which Smithfield Foods failed to protect workers... And if OSHA asserted these violations were willful, the penalty could be ten times as high. OSHA went very, very easy on Smithfield."
**Rural Community Worker's Alliance et al. v. Smithfield Foods Inc. et al., case number 5:20-cv-06063, in the U.S. District Court for the Western District of Missouri.
