By Zoey Binder
The United States Occupational Safety and Health Administration (OSHA) was highly criticized this year for an alleged lack of enforcement and failure to protect workers from unsafe working conditions related to COVID-19.
Of particular concern has been its failure to exert authority over the meatpacking industry, whose workers have been disproportionately harmed by the pandemic.
Minorities make up a large percentage of meatpacking industry workers. Approximately 5,000 meat and poultry processing plants in America employ more than half a million people. Of those workers, 36.2% are female, 34.5% are white, 21.9% are Black, and 34.9% are Latinx. More than one third (37.5%) of these workers are foreign born and, in some plants, as many as 90% of the employees are foreign born.
Meatpacking has long been a punishing industry for workers. Before COVID-19, “meatpacking workers were nearly twice as likely to suffer an injury and more than 15-times as likely to suffer an occupational illness than the average private sector worker.” COVID-19 saw an industry already facing dangerous working conditions become even more hazardous given the nature of the work and proximity of workers.
Following a string of outbreaks and pleas by meatpacking workers for greater workplace protections, on April 26, 2020, the Centers for Disease Control and Prevention and OSHA, issued a joint guidance directed to the meatpacking industry outlining steps employers could take to provide safer workplaces, including information about cleaning shared meatpacking tools, using appropriate personal protective equipment, temperature checks, adjusting sick leave policies, requiring workers to distance, and staggering shifts. The joint guidance did not provide an enforcement mechanism, and employers were ultimately left to decide which safeguards, if any, to implement.
Just one day later, a Smithfield pork processing facility in South Dakota reported the third largest cluster of COVID-19 cases in the United States. Then, on April 28, 2020, President Trump signed an executive order declaring meatpacking plants to stay open.
It was not until September 2020 that OSHA issued its first COVID-19 related citations to two meatpacking plants, Smithfield Packaged Meats Corp. in South Dakota, and JBS Foods Inc. in Colorado, after at least 1,500 workers contracted COVID-19 and 12 died at the two plants combined.
Under the Occupational Safety and Health (OSH) Act of 1970, there is but one “general duty standard” by which OSHA can cite employers. The standard requires employers to furnish a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm. Although broad, the general duty standard is highly subject to challenges in court as it requires OSHA prove the violator met every element of a four-part test. Because OSHA does not have a specific standard related to COVID-19, Smithfield and JBS were cited under the general duty standard, which establishes a maximum civil penalty of $13,494 for initial violations. Consequently, fines issued to Smithfield and JBS totaled just $29,000.
Under the OSH Act, states may implement their own OSHA plans so long as the state plan demonstrates effectiveness equal to or greater than federal OSHA standards. In the absence of enforceable, federal action, some state OSHAs implemented their own worker safety standards. In July, Virginia became the first state to issue an Emergency Temporary Standard that established mandatory requirements for employers to control, prevent, and mitigate the spread of COVID-19 among employees. Following suit in the subsequent months, Michigan, Oregon, and California state OSHAs issued temporary emergency rules aimed at mitigating the spread of COVID-19 in the workplace.
In lieu of enforceable federal OSHA standards, state OSHAs must continue to act as a patchwork stop-gap and enact mandatory requirements to protect meatpacking workers. Basic measures could include requiring employers to report every time an employee requires medical treatment beyond first aid, or notifying employees of potential exposure to COVID-19 within one business day of the potential exposure. By tracking COVID-19 infections and deaths by occupation, state OSHAs could help determine where federal resources should be concentrated.
The federal OSHA should take a cue from the state OSHAs that have enacted their own enforceable standards. OSHA measures requiring employers to identify potentially ill workers and report positive employee COVID-19 tests within set time periods would increase the spread of information and help reduce the spread of COVID-19. Additionally, it is imperative that the federal OSHA develop a standard specific to airborne, infectious diseases like COVID-19. The health of meatpacking workers and the public health of the United States should not be secondary to the interests of large meatpacking corporations.
Zoey Binder is a student at the Temple University Beasley School of Law.