Back in 1988, the Occupational Safety and Health Administration fined a meatpacking plant in Sioux Falls, South Dakota, owned by John Morrell & Co., $4.3 million for three willful violations of the general duty clause of the OSH Act of 1970 after more than 40% of the 2,000 workers at the facility developed cumulative trauma injuries like tendonitis and carpal tunnel. In a settlement, the fines were later dropped down to $990,000.
About 32 years later, the coronavirus has spread in meat plants across the country, including that same plant in Sioux Falls, which is now owned by Smithfield Foods. As at least 1,294 Smithfield employees got the virus and four died at that same South Dakota plant, OSHA proposed a $13,494 fine for violating its general duty clause, saying it was the maximum permitted by law. It gave the same reason for a $15,615 fine it issued to a JBS plant in Colorado soon after.
But former leaders at OSHA and legislators point to previous fines — like the one in 1988 — to say that isn’t the case.
"It is absolutely not true that those were the maximum fines they could give to these meatpacking plants," said Debbie Berkowitz, who previously worked at OSHA and is now the worker safety and health program director at the National Employment Law Project. "The fines reflected their decision just to issue one smaller citation. However, I think these small fines … are even less than a slap on the wrist."
In those two fines to JBS and Smithfield, which totaled less than $30,000, OSHA cited the companies for one serious citation each, where the maximum is $13,494 per violation. Under the general duty clause, which requires companies to keep the workplace "free from recognized hazards that can cause death or serious harm," the agency’s maximum fine for a willful citation is now $134,937.
A serious violation is used if there is a likelihood that death or serious harm could result from a condition at work unless the employer didn’t and couldn’t have known, while a willful violation is when a company demonstrated intentional disregard for the Act’s requirements or indifference to employee health, according to OSHA. Some say that plants could have received more than one citation or a willful violation.
"It is absolutely not true that those were the maximum fines they could give to these meatpacking plants."
Worker Safety and Health program director, National Employment Law Project
David Michaels, head of OSHA during the Obama administration, tweeted that “OSHA went VERY VERY easy on Smithfield.” Michaels said “OSHA could have issued numerous citations” and “if OSHA asserted they were willful, the penalty could be 10X as high.” He told Government Executive these could have been willful violations because Smithfield and JBS “clearly knew the hazard existed and it was feasible to abate the hazard.”
Sens. Elizabeth Warren (D-Mass.) and Cory Booker (D-N.J.) sent a letter to OSHA in September calling its fines "paltry" and the “absolute minimal enforcement action OSHA could have taken.” The senators pointed to last year, when OSHA cited a meatpacking plant in Texas with a penalty of $615,640 for exposing workers to hazardous chemicals as an example.
"OSHA has the authority to issue a serious violation for every area of the inspected facilities where social distancing was not being implemented. OSHA also has the authority to classify the violations as 'willful' for either 'intentional disregard of violations' or 'plain indifference,' increasing the maximum penalty tenfold,” the senators wrote.
OSHA has since issued additional citations to meat plants in the last month, including a JBS facility in Green Bay, Wisconsin, which received a $13,494 proposed fine for violations including employees working in too close proximity, as well as a $1,928 fine at its Cactus, Texas, Swift Beef Co. plant, while Quality Sausage Company was given three proposed fines totaling $25,062 after workers got sick and died at its Dallas plant.
Marcy Goldstein-Gelb, co-executive director of National Council for Occupational Safety and Health, said there should be a citation for every individual violation so finding only one at a plant like Smithfield’s, where more than a thousand workers got sick, is "shocking.”
"Bottom line is they're completely inadequate," Goldstein-Gelb said. "The point of a fine is to send a message, to be a deterrent for future violations. And so having something that just ends up being a cost of doing business is basically encouraging continued lack of compliance."
While critics and activists called the citations too small, Smithfield and JBS criticized the fines, saying they shouldn’t have been cited at all because they followed OSHA’s guidance once it was available.
“[T]he citation is wholly without merit and we are contesting it,” Keira Lombardo, executive vice president of Smithfield's corporate affairs and compliance, said in an email. Lombardo said OSHA only issued one citation under its general duty clause for conditions on and before March 23. Lombardo said OSHA didn't issue guidelines for the industry until April 26.
Using similar language, Cameron Bruett, head of corporate affairs at JBS USA, said in an email when its fine was announced that the citation was "entirely without merit" because it tries to "impose a standard that did not exist in March as we fought the pandemic with no guidance."
Despite the criticism, OSHA has stood by its citations. A Department of Labor spokesperson said in an email that OSHA continues to conduct its investigations and issue citations using its “well-established procedures and legal standards.” Per the OSH Act, the agency has six months to complete an investigation.
“COVID-related inspections can be complex and require significant time to complete. OSHA cites based on the hazard and the penalty amount is set by Congress,” the spokesperson said.
How OSHA has handled pandemic guidance and fines
OSHA is citing meat companies under the general duty clause because it didn't issue specific coronavirus safety regulations, experts say. The general duty clause isn’t commonly used since it has a four-part legal test, which makes it challengeable in court, Politico reported. General duty clause citations made up roughly 1.5% of OSHA’s more than 61,000 citations in fiscal year 2018, according to Safety and Health Magazine.
"The general duty clause is there when OSHA doesn't have a specific standard. And OSHA … decided not to issue a standard for COVID-19 to protect workers, which would have laid out for employers what was required," Berkowitz said.
OSHA has faced criticism since the start of the pandemic when meat plants quickly became hot spots for coronavirus.
Mark Lauritsen, vice president and director of the food processing, packing and manufacturing division of the United Food and Commercial Workers Union, said he would give OSHA an “F minus” for its handling of the pandemic in meat processing plants.
“OSHA should have issued an emergency standard, just like they did during the H1N1 pandemic. They failed to do that. Instead they put up voluntary guidance, which had more holes in it than a block of Swiss cheese,” Lauritsen said. During the swine flu outbreak in 2009, OSHA reportedly rolled out specific guidance and rules.
In April, OSHA issued guidance with the CDC making recommendations about cleaning shared meatpacking and processing tools, screening employees for the coronavirus before they enter facilities and managing workers who show symptoms.
Michaels, who is now a professor at George Washington University, said at a virtual briefing in May for the House Education and Labor Committee that CDC and OSHA are "issuing suggestions not standards" and thousands of workers have gotten sick in the meat industry.
“This is powerful proof that recommendations are simply not enough,” Michaels said at the briefing. He said a strong OSHA standard should be implemented.
"OSHA should have issued an emergency standard, just like they did during the H1N1 pandemic. They failed to do that. Instead they put up voluntary guidance, which had more holes in it than a block of Swiss cheese."
Director of the food processing, packing and manufacturing division, United Food and Commercial Workers Union
AFL-CIO sued DOL and OSHA in June to issue an emergency temporary standard, but the U.S. Court of Appeals for the D.C. Circuit rejected the suit.
"OSHA utilizes its preexisting authorities that apply to protecting workers from the coronavirus. Recently, a unanimous panel for the United States Court of Appeals for the D.C. Circuit concluded that OSHA acted reasonably when it determined that a new emergency temporary standard was not needed at this time," a DOL spokesperson said. "Since that court ruling, OSHA has continued to rely on its preexisting authorities in order to keep America's workplaces safe."
Lauritsen said unions pushed for companies to adhere to stricter precautions, but there are many workers that don't have the protection of the union contract. “Some employers are very unscrupulous and they would say, ‘Well, I don't have to do anything so I'm not going to do anything,’” he said. But even eight months in, Lauritsen said it’s not too late to issue an enforceable standard.
“I really fear though now that this administration, this Department of Labor, this OSHA because they've done so little for the first eight months, that the remaining two or three that they have left, I think they'll just check out and do absolutely nothing right when we're about to go into a real severe time,” Lauritsen said. “COVID cases are really heating up right now. And they've done absolutely nothing. And they're refusing to do anything.”
National COSH's Goldstein-Gelb said there's a lot more that OSHA could have already done and although there have already been “devastating consequences,” it's never too late to improve the conditions for workers.
"In fact, day one, we're hoping that President-elect Biden will take action to enact an emergency infectious disease standard, but if the current president would step up and do such a thing then we would welcome it," Goldstein-Gelb said.
Experts are warning that another wave of increased coronavirus cases could be coming in the winter. Already, at least 546 meatpacking plants have had confirmed cases of COVID-19, nearly 50,000 meatpacking workers tested positive and at least 249 meatpacking workers have died across the industry, according to data collected by Food Environment Reporting Network.
“No worker should ever have to make the choice between being seriously ill or dead, and having a job. That's the specific role of OSHA to make sure that that stuff never happens,” Lauritsen said. “History will write this down as the biggest failure of OSHA since its inception.”
Berkowitz also said OSHA should have issued an emergency temporary standard and conducted robust enforcement where they got complaints alleging workers were getting sick back in April.
“This industry, the big meat and poultry plants, consider their workers to be expendable and treat them as such,” she said.
Companies and meat trade groups have argued that OSHA didn't release guidance until late April and said that PPE and testing was hard to obtain early on in the pandemic.
"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. We also simultaneously and repeatedly urged OSHA to commit the time and resources to visit our operations in March and April. They did not do so," Lombardo of Smithfield said.
How states are regulating workplace safety
Aside from federal regulations, how states have handled the pandemic and outbreaks in the workplace has varied.
Berkowitz said that some states have set a standard themselves, like Virginia and Michigan, while some other states have implemented requirements through a governor's executive order. But she said “many states have done nothing,” including South Dakota and Colorado, where these plants are located.
As the pandemic drags on, some states have been stricter with enforcement. California, for example, said in its Cal/OSHA’s reporting requirements posted in June that employers are required to record all serious illnesses or deaths occurring at work. The state also passed a law, which is expected to go into effect on Jan. 1, mandating employers notify workers of any potential exposure and allowing Cal/OSHA to shut down a workplace that exposes workers.
Cal/OSHA has proposed almost $400,000 in fines against food and farm companies for COVID-19-related violations, with fines as large as $110,000, according to FERN.
"Right now, given the lack of federal action, there are some localities and states that are stepping up to the plate," Goldstein-Gelb said.
However, some state agencies have issued smaller fines, similar to the federal ones. Iowa's OSHA division issued a $957 proposed fine to the Iowa Premium Beef plant for a small record-keeping violation.
A spokesperson for the Iowa’s Division of Labor said in an email that citations are based specifically on violations of standards or the general duty clause.
"There is no standard directly related to the airborne transmission of a virus and therefore, we do not have authority to issue a citation in relation to the number of sick or injured employees. The only violation our inspector found was for the record-keeping standard," the spokesperson said.
Iowa’s enforcement has drawn serious criticism as well. Last week, the American Civil Liberties Union of Iowa and other groups filed a federal complaint against Iowa's OSHA, claiming that regulators failed to protect workers and that complaints at meat plants didn't lead to inspections.
Some states are also having to contend with federal regulations that may contradict their own actions. In New Mexico, for example, Stampede Meat is currently suing New Mexico to fight against a state public health order that is forcing it to temporarily shutter a plant for two weeks after an outbreak among workers. The meat company is using President Donald Trump’s April executive order labeling meat processing plants as "critical infrastructure" to argue that it can’t be shut down.
ProPublica later disclosed emails that showed the president of the North American Meat Institute sent top officials at the USDA a draft of an executive order, pointing to how outbreaks reduced production, which was language later used in the president’s order. Other emails obtained by ProPublica showed that as state and local health officials wanted to shutter JBS’s Colorado plant, the company asked Gov. Jared Polis and Vice President Mike Pence for help.
“We know that in meatpacking plants that the exposures in these plants were significant drivers of COVID-19 in the communities and the meat plants were very late to offer protection to workers. Instead they use their political capital to lobby Vice President Pence to really protect them from having to protect their workers,” Berkowitz said.
OSHA fields thousands of COVID-19 complaints
Since the OSH Act was implemented, if workers feel unsafe, they can file a complaint with the agency. As the pandemic hit, it received thousands of COVID-related complaints.
A DOL spokesperson said that through Nov. 9, federal OSHA has received 11,514 coronavirus-related complaints and referrals, and 9,676 of those have been closed. They said every complaint is investigated.
In total across industries, OSHA has cited 204 establishments for violations relating to coronavirus, resulting in proposed penalties totaling more than $2,856,530 as of Nov. 5.
“The agency continues to field, respond to and investigate all complaints, and will take the steps needed to address unsafe workplaces, including enforcement action, as warranted,” the spokesperson said.
Since Feb. 1, OSHA said it received 104 complaints and conducted 85 inspections in the meat processing industry.
"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. We also simultaneously and repeatedly urged OSHA to commit the time and resources to visit our operations in March and April. They did not do so."
Executive vice president of corporate affairs and compliance, Smithfield Foods
To help the industry understand the worker rights and the responsibilities of employers under the OSH Act, the agency and the North American Meat Institute signed a two-year agreement to give the group's members, the meatpacking workforce and the public "information, guidance and access to training resources that will help them protect workers." The move drew criticism from unions that questioned whether this gave industry more power to police itself on worker safety.
Berkowitz recently found in a report for NELP that of the 1,744 COVID-19-related retaliation complaints filed by workers from the beginning of the pandemic through Aug. 9, 348 complaints were docketed for investigation and 35 complaints were resolved in that period. About 54% of the complaints were dismissed without investigation, the report found.
“The Secretary of Labor and the acting head of OSHA had stated, and we put that in our report, that ‘Oh, we have the backs of workers who stand up for their rights because that's illegal.’ And that’s true, the right exists on paper that workers have the right to speak up without getting retaliated against. And we did the report to show that it really, in this administration, was just a paper right … Most were not getting protected by OSHA at all,” she said.