On April 28, 2020 President Trump signed an executive order declaring meat processing plants as “essential infrastructure,” requiring meat processors to remain open during the COVID-19 pandemic. Meat processor, Smithfield Foods Inc., has recently been under intense scrutiny for its continued operations during the health crisis after more than 1,000 COVID-19 inflections have been linked to a single processing plant in Sioux Falls, South Dakota, notwithstanding the company’s claim in mid-March that it had instituted safety protocols and was following strict guidance from the CDC. The first case of coronavirus at the Sioux Falls plant was identified on March 24th, yet the plant remained open for an additional three weeks.
Employees at meat processing facilities are particularly vulnerable to the spread of coronavirus due to the tight working conditions and the need for around the clock operations to stave off food shortages, which triggered the President’s Executive Order in the first place.
Workers at another Smithfield plant in Missouri filed a lawsuit claiming that Smithfield was operating its plant “in a manner that contributes” to the spread of coronavirus. The lawsuit, filed anonymously by a female employee, accused the company of failing to provide employees with sufficient personal protective equipment (“PPE”), forcing them to work in crowded conditions, and discouraging employees from taking sick leave, creating an unreasonable risk of contracting the virus. In early May, a federal judge dismissed the allegations that Smithfield failed to adequately protect its workers.
Ultimately, the Missouri court ruled that the Occupational Health and Safety Administration (OHSA) was better positioned to determine whether companies were following its safety guidance. The judge also expressed concern that if courts were left to make such determinations, there would be too great a risk of inconsistent regulation, especially in light of rapidly evolving guidelines.
The lawsuit was not seeking money damages, but rather an injunction to force the plant to comply with public health guidelines. In dismissing the action without prejudice, the judge acknowledged that the company had taken several steps to enhance worker safety, including temperature screenings and amended sick leave policies. The dismissal order also cited enhanced efforts to reduce workplace crowding on the production lines.
The ruling highlights the difficulty employees will have in challenging the specific steps their employers have taken (or not taken) to protect against the spread of coronavirus. Each workplace will have unique challenges in implementing appropriate social distancing guidance while still ensuring the continuity of operations and complying with the applicable various guidance and regulations. The Smithfield case suggests that workplace safety violations should be identified and remedied by agency experts, not judges.
Employers have a duty to provide a reasonably safe workplace. So as not to run afoul of OHSA and CDC guidance, companies like meat processing plants must ensure that staff are provided appropriate PPE that will not interfere with an employee’s job responsibilities. Employers should assess whether physical modifications are necessary to facilitate spreading out employee workspaces and ensure that workers are given sufficient breaks for handwashing and personal hygiene care. Enhanced cleaning and disinfection protocols should also be implemented. Any policy changes should be clearly communicated to all workers.
If other courts follow the trail blazed by the judge in the Smithfield case, and in the absence of additional guidance, administrative agency enforcement of alleged workplace safety violations may be the only way for employees to seek redress for their health and safety concerns arising under federal law, absent blatant violations which warrant immediate judicial intervention.
In such cases, an employee would likely have to provide evidence of a threat of irreparable harm. This is an especially high burden given the virus can be transmitted when someone is asymptomatic, and there remains much to be discovered about coronavirus transmission. The fact that the disease manifests with extreme variance amongst patients will further complicate efforts to satisfy the injunction threshold due to the speculative nature of an employee’ health concerns.
It will be interesting to see whether OHSA will be able to efficiently and effectively investigate alleged workplace safety violations. As employers look for ways to return their workforce, or make the workplace safer for employees who have remained on the job, a failure to take reasonable steps in furtherance of workplace safety could not only expose workers to serious illness, but expose companies to legal liability as well.