Trial News

Factories that process meat and poultry have emerged as potential hot spots for the spread of the new coronavirus, prompting guidance from OSHA and the Centers for Disease Control and Prevention (CDC), as well as litigation against factories for failing to take sufficient precautions to protect workers from exposure.

More than 200 meat-processing plants nationwide have reported COVID-19 cases, with more than 14,000 workers infected with the virus. One pork plant in South Dakota, for example, accounted for more than half of the state’s COVID-19 cases in April. But these workers have continued to do their jobs during the pandemic because the Cybersecurity and Infrastructure Security Agency considers them “critical infrastructure” workers. And on May 1, President Trump issued Executive Order 13917 classifying meat and poultry in the food supply chain as “critical and strategic materials” under the Defense Production Act of 1950 to ensure continued processing operations.

OSHA and the CDC have issued guidelines for a range of workers considered “essential” who are still working during the pandemic. Meat-processing plants have especially raised concerns because of working conditions that make it difficult to follow social distancing protocols and the need to maintain the country’s food supply. The agencies’ April 26 interim guidance explains that the nature of these jobs increases workers’ exposure risk. They work in close quarters that make social distancing difficult, spend prolonged amounts of time together—10–12 hours per shift—and share enclosed spaces that increase exposure potential from respiratory droplets in the air and contaminated common surfaces. The guidance also points out that workers often share transportation to and from the factory and often interact with their coworkers in community settings.

Among the recommendations to reduce the risk of infection, employers should create a COVID-19 assessment and control plan. The agencies suggest implementing “engineering controls” such as changing how shared workspaces are configured to allow for social distancing, erecting physical barriers to separate workers on the same assembly line, ensuring there is adequate ventilation, removing fans that could circulate virus particles around the area, and increasing hand washing and sanitizing stations.

The guidance also outlines “administrative controls,” including staggering break times and arrival and departure times, putting up signs to remind workers to follow social distancing protocols, splitting or alternating shifts, and considering “cohorting” (assigning the same shifts to the same workers). Additional recommendations include more frequent disinfection of shared tools, screening and monitoring workers for coronavirus symptoms, and instituting sick leave plans that encourage workers to stay home if they are feeling ill.

Several lawsuits already have been filed in different jurisdictions alleging that meat-processing companies failed to enact worker safety procedures and respond to the threat of coronavirus exposure quickly enough. (See, e.g., Benjamin v. JBS S.A., No. 200500370 (Pa. Ct. Com. Pl. Phila. Cty. filed May 7, 2020).) One case filed in the Western District of Missouri was dismissed on jurisdiction grounds, with the court ruling that OSHA and the USDA have primary jurisdiction over worker safety. (Rural Community Workers Alliance v. Smithfield Foods, Inc., No. 5:20-CV-06063-DGK (W.D. Mo. May 5, 2020).) Plaintiff Jane Doe works on the “cut floor” breaking down animals at a Smithfield meat-processing plant in Milan, Mo. She sued Smithfield, alleging public nuisance and breach of duty to provide a safe workplace. She sought a temporary restraining order and preliminary injunction against the defendant to force it to follow the recommended guidelines for safe practices during the pandemic, including providing masks, ensuring social distancing, and changing its leave policy.

Smithfield moved to dismiss the case based on the primary jurisdiction doctrine that “allows a district court to refer a matter to the appropriate administrative agency.” The court noted that there is no bright-line test for evaluating cases under the doctrine, but that it must consider “whether the reasons for the doctrine are present and whether applying the doctrine will aid the purposes for which the doctrine was created.” The doctrine can be used to access an agency’s expertise on a matter and to ensure consistent application of regulations.

The court agreed that the doctrine applied here, finding that the plaintiff’s case hinged on whether the defendant was complying with the interim guidance and that the agencies were best placed to make that determination. “Plaintiffs are naturally concerned for their health and the health of their community in these unprecedented times,” the court wrote in its order, but the agencies’ authority could not be ignored. The court was not persuaded by the facts alleged in the plaintiff’s declaration and the declarations of other witnesses and experts about the conditions at the factory. It instead gave “considerable weight” to a Smithfield expert’s declaration that the company is following recommendations.

“While we disagree that Smithfield has implemented sufficient changes to address workers’ concerns and protect their safety, any changes that have been implemented are the result of the courageous workers who came forward to demand better from the company,” said David Muraskin of Public Justice, which represented the plaintiff. “Their unprecedented stand for workplace safety has resonated across the entire meat-packing industry.”

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