In an April 14 letter to Senate Majority Leader Mitch McConnell, multiple food trade associations including the North American Meat Institute, FMI The Food Industry Association, the American Beverage Association, and the Americans Bakers Association wrote: “During the COVID-19 crisis, businesses that make up the nation’s essential critical infrastructure are acting as good Samaritans.
"They are serving the real, immediate needs of the American people and they should not have to worry they will be sued for simply providing the products and services Americans need right now…. We ask for your leadership and support for liability protection language for businesses designated as essential critical infrastructure.”
In a letter sent to congressional leaders Thursday (April 30), however, Washington, DC, based health advocacy group The Center for Science in the Public Interest (CSPI) said Congress should reject calls for such a ‘liability shield.’
“We appreciate that many of the companies represented by these groups provide essential products and services, and that these businesses face unprecedented challenges in continuing to do so. However, existing law already shields companies from non-meritorious lawsuits.
“A liability shield improperly protects companies that do not take reasonable measures, and it deprives victims of the fact-finding tools to ferret out bad actors and seek reasonable compensation,” CSPI writes.
OSHA: 'Courts often consider compliance with OSHA standards and guidance as evidence in an employer’s favor in litigation'
The issue of liability in the food industry – a segment of the economy that has kept going as many other industries have been forced to hit 'pause' – has become particularly pertinent in light of the President’s April 28 executive order, which has generated headlines along the lines of ‘Trump compels meat plants to stay open' (although it does not state that plants must remain open if workers are sick).
The order makes no reference to meat plants’ legal liability should workers claim they contracted COVID-19 due to employer negligence, although the president told reporters earlier in the week that it would “solve any liability problems" firms might have.
An April 28 announcement from OSHA and the Solicitor of Labor does not clarify whether the President’s order shields firms from any liability, but did note that “courts often consider compliance with OSHA standards and guidance as evidence in an employer’s favor in litigation.”
It added: “Where a meat, pork, or poultry processing employer operating pursuant to the president’s invocation of the Defense Production Act has demonstrated good faith attempts to comply with the Joint Meat Processing Guidance and is sued for alleged workplace exposures, the Department of Labor will consider a request to participate in that litigation in support of the employer’s compliance program.
“Likewise, the Department of Labor will consider similar requests by workers if their employer has not taken steps in good faith to follow the Joint Meat Processing Guidance.”
USDA: Following CDC/OSHA guidance reduces firms' risk of being found legally liable
A USDA spokesperson told FoodNavigator-USA: "By clarifying the standard they must meet, companies subject to the order may take the actions called for in the joint CDC/OSHA guidance and thereby reduce their risk of being found legally liable.”
What does the President’s executive order on meat plants actually mean?
Despite the headlines, the President’s executive order does not appear to compel meat processing plants to stay open, although it notes that recent closures in some states may be “inconsistent” with guidance issued by the CDC and OSHA and has been interpreted by some commentators to mean that states do not now have the rights to close plants.
So what does it actually mean?
According to the USDA spokesperson: “The order clarifies which safety standards companies must follow – those found in the joint guidance from the CDC and OSHA. There will be no longer conflicting guidance coming from state and local officials."
Under the new order, said the USDA, "Establishments will provide written documentation of mitigation plans for review by the USDA-led federal leadership team, which consists of representatives from USDA, DOL and CDC. The team will swiftly review documentation provided and work in consultation with the state and local authorities to resume and/or ensure continuity of operations at these critical facilities.”
Tyson Foods: ‘Order does not mean we may not temporarily suspend operations at some plants as appropriate’
A spokesman for Tyson Foods – which has idle plants in Dakota City, Waterloo and Perry, Iowa; Logansport, Ind.; Wallula, Wash; and Pasco, Wash. - told FoodNavigator-USA that the order “does not mean we may not temporarily suspend operations at some plants as appropriate. In fact, last night we announced plans to temporarily idle our Dakota City, Nebraska beef plant.”
It also “does not mean that deliveries to customers will immediately be back on track or that we will open plants without implementing CDC and OSHA guidance for the protection of our team members,” he added.
“Tyson has been applying and, in some cases, exceeding these standards in an effort to best protect our team members.
“The DPA [Defense Production Act] clarifies that processing facilities should be applying CDC and OSHA guidance to protect workers; states that it is critical that meat and poultry plants continue their operations; and delegates authority to the USDA to issue rules and orders consistent with keeping operations running.
“The President’s executive order will help ensure that federal, state and local authorities are coordinated through the Department of Agriculture to ensure the nation’s food supply while protecting worker health and safety. That’s what we’re focusing right now.”
Cargill: ‘Outstanding questions’
Cargill – which is currently running with reduced shifts at its Fort Morgan, Colo., facility and reduced capacity at plants in Dodge City, Kan. and Hazleton, Penn. – said it High River, Alta. facility which is currently idled, will reopen May 4 with one shift.
Asked how Cargill interpreted the President's executive order, a spokesman told FoodNavigator-USA that, “We have no official comment on the executive order as there are still several outstanding questions.”
Smithfield Foods: Order will ‘provide priority assistance in securing an ongoing supply of critical PPE’
Smithfield Foods, meanwhile, said the order “helps ensure the American people will not experience protein shortages,” while the CDC/OSHA guidance “provides a much-needed framework that prioritizes employee health and well-being.
“Importantly, the company believes that the executive order will provide priority assistance in securing an ongoing supply of critical PPE, as well as aid the company in securing broader COVID-19 testing for its employees.”
Smithfield added that it has “not furloughed or laid off a single worker, despite closing multiple facilities and numerous lines falling dormant in other locations” and is now “evaluating next steps to open its currently shuttered facilities.”
Asked what it understood by the President's comments on "solving any liability issues" meat firms might have, a spokeswoman said: "We would recommend you reach out to the White House with regards to the President’s commentary."
Perdue: PPE and access to testing expected 'virtually immediately'
Speaking to Bloomberg News on Thursday, USDA Secretary Sonny Perdue said slaughterhouse workers should begin receiving more protective gear and access to coronavirus testing “virtually immediately,” while the USDA has already begun working on orders to get them filled on a priority basis by vendors similar to health care workers.
Perdue told Bloomberg he expected the national shortfall in meat production, which he estimated at 20% to 30%, to be narrowed to “10% to 15% within a week to 10 days.”
Smithfield says lawsuit 'grossly misrepresents the substantial safety measures' it has implemented at Milan, Mo., plant
His comments came as attorneys for Smithfield Foods urged a court in Missouri to toss or stay a class action lawsuit filed by an unnamed worker at the firm’s plant in Milan, Mo, that calls for an injunction to force the company to change its practices.
In the lawsuit* filed April 23, plaintiff Jane Doe claimed Smithfield “continues to operate its plant in Milan, Missouri in a manner that contributes to the spread of disease,” citing insufficient personal protective equipment, working practices requiring staff to work shoulder to shoulder, lack of time for handwashing and other practices she claims endanger employees – allegations Smithfield says “grossly misrepresent the substantial safety measures” it has implemented at the plant.
The suit does not seek monetary damages, but requests an injunction “to force Smithfield to change its practices such that if it continues to operate, it must comply with, at a bare minimum, CDC guidance, the orders of state public health officials, and additional protective measures that public and occupational health experts deem necessary based on the particular structure and operation of the Milan plant.”
In a motion to dismiss the case, Smithfield said the court “need not—and should not—wade into this area, and put itself in the position of policing workplace safety and directing state public health policy at the behest of a private plaintiff.”
RWDSU: ‘If the administration had developed meaningful safety requirements early on … this would not have become an issue’
Commenting on the executive order, Stuart Applebaum, president of the Retail, Wholesale and Department Store Union (RWDSU), said, “If the administration had developed meaningful safety requirements early on as they should have and still must do, this would not even have become an issue.”
Marc Perrone, president of the The United Food and Commercial Workers Union - which represents 250,000+ meatpacking and food processing workers across the country - called for "immediate" access to PPE and and immediate halt on line speed waivers: “Safety standards must ensure all workers have access to testing and personal protective equipment, social distancing is enforced, and paid sick leave is provided to all workers so that no one comes to work sick."
*The case is Rural Community Worker's Alliance et al. v. Smithfield Foods Inc. et al., case number 5:20-cv-06063, in the U.S. District Court for the Western District of Missouri.