In a lawsuit targeted at Smithfield Foods' Milan, Mo., meat processing plant, the District Court of Western Missouri ruled that the Occupational Safety & Health Administration (OSHA) has primary jurisdiction over worker safety in meat processing plants across the country during the COVID-19 national emergency. Agriculture Secretary Sonny Perdue welcomed the ruling, saying it affirms that OSHA is the primary entity that has authority over worker safety.
In a 24-page order Tuesday, U.S. district Judge Greg Kays declined to hear the case, which alleged that working conditions at the plant have left its workers dangerously exposed to the novel coronavirus. Smithfield said the court's opinion confirms that these types of claims do not belong in the courts because OSHA, in coordination with the U.S. Department of Agriculture, "is better positioned" to make determinations regarding compliance with the applicable guidance, and allowing it to do so will "ensure uniform national enforcement."
Smithfield welcomed the dismissal, stating from the start that the company believed the lawsuit was "frivolous" and "was nothing more than an attempt by a number of interconnected groups to promote their agenda through outrageous accusations."
Smithfield continued, "At the core of our company’s COVID-19 response is an ongoing focus on employee health and safety and continued adherence with – at a minimum – [Centers for Disease Control & Prevention] and OSHA guidance. Across all our facilities, we are providing our team members with [personal protective equipment], including masks and face shields. We have implemented mass thermal scanning and installed physical barriers on our production floors and in break areas. We also continue to explicitly instruct employees not to report to work if they are sick or exhibiting COVID-19 symptoms and that they will be paid, including any and all bonuses, when they are quarantined. These measures remain mandatory and non-negotiable conditions for our company to operate.”
On April 28, President Donald Trump signed an Executive Order to keep meat and poultry processing facilities open during the COVID-19 national emergency. Perdue said since the order was issued, USDA has been working hand in hand with OSHA and CDC to ensure that meat processing facilities are abiding by federal guidelines.
Just days prior to the signing of the Executive Order, CDC and OSHA issued guidance for plants to implement to help ensure employee safety so they can reopen or to continue to operate those plants still open.
“This ruling is directly in line with what the federal government has been calling for companies and communities to do in light of the President’s Executive Order,” Perdue said. “If we continue to work together, we can maintain the critical supply of meat and poultry for Americans while also protecting worker health and safety.”
On Tuesday night, Perdue sent two letters to governors across the nation and leadership of major meat processing companies. These letters establish USDA’s clear expectations for the implementation of Trump’s Executive Order.
In his letter to governors, Perdue said he has directed meat and poultry processors to utilize the guidance CDC and OSHA issued on April 26, 2020, specific to the meat and poultry processing industry to implement practices and protocols for staying operational or resuming operations while safeguarding the health of workers and the community.
USDA has also directed meat and poultry processing plants currently closed and without a clear time table for near-term reopening to submit to USDA written documentation of their protocol, developed based on the CDC/OSHA guidance, and to resume operations as soon as they are able after implementing that guidance for the protection of workers.
“Meat and poultry processing plants contemplating reductions of operations or recently closed since Friday, May 1, and without a clear time table for near-term resumption of operations should submit written documentation of their operations and health and safety protocol developed based on the CDC/OSHA guidance to USDA,” Perdue said in his letter to stakeholders. “Plants should resume operations as soon as they are able after implementing the CDC/OSHA guidance for the protection of workers.”
At least 5,000 workers in 115 meat packing plants have gotten sick from COVID-19, and at least 20 have died so far, according to CDC. At least 22 plants have closed. CDC reporting does not include new cases reported since April 27 and does not include all states or all meat packing plants. The Midwest Center for Investigative Reporting estimates that there have been at least 9,300 reported cases of COVID-19 in 27 states.
Scott Faber, Environmental Working Group senior vice president of government affairs, said Perdue and Labor Secretary Eugene Scalia should issue emergency standards that employers must follow.
Reps. Marcia Fudge (D., Ohio) and Emanuel Cleaver II (D., Mo.) and 46 members of Congress also called on USDA, the U.S. Department of Labor and the U.S. Department of Health & Human Services to provide transparency and guidance to ensure that workers are protected as they continue to operate in meat processing facilities. This effort comes after the Executive Order classifying these plants as critical infrastructure, forcing them to remain in operation.
“The meat packing industry has been devastated by COVID-19, with infection hotspots appearing in processing plants across the country,” Fudge said. “While the security of our food supply is critical to keeping Americans fed during this crisis, forcing workers to choose between their jobs and their safety is reckless and irresponsible. If frontline food workers are to remain on the job, the Administration needs to put forward a clear plan for how it plans to protect and adequately compensate these workers.”
Rep. Rosa DeLauro (D., Conn.), chair of the House Appropriations Committee on Labor, Health & Human Services & Education and vice-chair of the House appropriations subcommittee on agriculture, joined House Agriculture Committee chairman Collin Peterson (D., Minn.), former agriculture secretaries Tom Vilsack and Dan Glickman, chef José Andrés and Consumer Reports to announce the release of a comprehensive action plan to safeguard America’s food supply during the COVID-19 pandemic.
The action plan calls on USDA’s Food Safety & Inspection Service to immediately create an intergovernmental task force with CDC, the Food & Drug Administration and OSHA to establish, implement and ensure compliance with recommendations to ensure worker safety during this pandemic. Ensuring that food processors and distributors are operating with proper health and safety protocols will enable a more robust food supply system by avoiding a concentration of burden and risk on the few suppliers still in operation.
Additionally, USDA and its federal partners should:
- Prioritize members of the food supply chain workforce for COVID-19 testing, access to personal protective equipment and forthcoming treatments;
- Review and modify existing regulatory waivers of federal meat inspection requirements, if necessary, to meet recommended food safety and health guidelines for safe operation, and
- Direct meat packing companies to reduce production line speeds and require them to provide employees with social distancing and physical barriers to reduce potential exposure to and spread of COVID-19.