OSHA’s Citation And Fine Against Smithfield Foods Is a First

OSHA’s recent citation and $13,494 fine against Smithfield Foods is receiving mixed reactions. Some say it’s not enough of a penalty, even though it is the maximum amount allowed by law. Others find the whole idea of OSHA issuing pandemic-related penalties a bit ludicrous — given the confusing signals coming from the federal government.

Smithfield intends to appeal.

So what’s the story?

Last April, the Smithfield Foods processing plant in Sioux Falls, South Dakota, was closed after hundreds of employees tested positive for the coronavirus. At the time, it was the largest infection cluster in the country. Between March 22 and June 16, almost 1,300 employees contracted the virus, 39 were hospitalized, and four died. Outbreaks at other large meatpacking plants followed.

While the Smithfield plant in Sioux Falls shut down temporarily in the spring, it opened up again on May 4. The reopening was just a few days after President Donald Trump ordered meat plants to remain open, citing the Defense Production Act.

What are OSHA’s expectations?

In all of OSHA’s guidance, it is clear that the agency does not consider COVID-19 in the same way as it does influenza — even though the symptoms are similar.  There is a stated expectation that employers will make a reasonable effort to comply with emerging guidance.

OSHA guidance details proactive measures employers can take to protect workers from COVID-19, including social distancing, the use of physical barriers, face shields, and face coverings – the efficacy of which is not settled. OSHA guidance also recommends training and other communication efforts to inform employees — in a language that workers understand — about safety.

Because there aren’t specific regulations related to coronavirus safety, the General Duty Clause is the tool that OSHA uses to penalize employers for perceived wrongdoing. The General Duty Clause says that an employer must provide a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm,” including, according to OSHA, COVID-19.

Specifically, in issuing the citation and fine to Smithfield, OSHA maintains that [the company] “did not develop or implement timely and effective measures to mitigate exposures to the virus” at the Smithfield facility. In a press release, OSHA’s area director, Sheila Stanley, said, “employers must quickly implement appropriate measures to protect their workers’ safety and health. Employers must meet their obligations and take the necessary actions to prevent the spread of coronavirus at their worksite.”

Smithfield’s response

Smithfield, headquartered in Smithfield, Virginia, is owned by the Hong Kong-based WH Group Ltd., the world’s largest pork processing company. They have defended their response to the outbreak and are appealing the citation and fine.

Keira Lombardo, Smithfield’s Executive Vice President, Corporate Affairs and Compliance, said that the citation is “wholly without merit” and that the company will appeal. Lombardo added that Smithfield “took extraordinary measures on our own initiative to keep our employees as healthy and safe as possible so that we could fulfill our obligation to the American people to maintain the food supply.”

In a June letter to Sens. Elizabeth Warren (MA) and Cory Booker (NJ), Smithfield’s CEO, Kenneth Sullivan, said:

Processing plants were no more designed to operate in a pandemic than hospitals were designed to produce pork. In other words, for better or worse, our plants are what they are. Four walls, engineered design, efficient use of space, etc. Spread out? Okay. Where?

What’s the take-away?

This is the first COVID-19 related citation targeted at the meatpacking industry, which has been significantly impacted by the pandemic. More citations and fines will undoubtedly follow. New data released in September by state officials in Kansas, for example, has indicated that at least 2,148 cases have been linked to six meatpacking plants in that state, and the data indicate that the virus has rippled out into the community surrounding these plants.

We’ll have to wait and see what happens. OSHA has been criticized in some circles for the relatively small number of inspections and citations it has made to date. The Smithfield citation may indicate that this is changing.

In the meantime, I encourage you to contact me if you have any questions or concerns about any OSHA compliance issues.

About the Author: James Laboe

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