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OSHA Meat-Plant Inspections Increase After Trump Executive Order

June 2, 2020, 8:26 PM

The main federal agency policing workplace safety standards has nearly doubled inspections of meat-processing plants since pledging to use “enforcement discretion” when conducting coronavirus-related reviews at slaughterhouses that try to follow agency guidance.

The Occupational Safety and Health Administration has opened 24 inspections of processing plants since April 28, when President Donald Trump’s executive order required meat-production plants to remain open despite worker infections and the agency released an enforcement memo outlining its discretionary approach. That’s an increase of roughly 70% over the 14 inspections of processing plants launched between that date and March 16, the first business day after industries across the nation were affected by state and local shutdown orders.

Nine of the federal inspections initiated since April 28 were prompted by a worker’s death or the hospitalization of three or more workers, enforcement records show. The rest were prompted by referrals from other agencies, such as health departments, employer reports, or employee complaints. Some of the investigations may have involved accidents or complaints unrelated to Covid-19 concerns.

As processing plants remain coronavirus transmission hot spots in many rural communities, industry representatives view the rise in inspections as proof OSHA is continuing to do its job. Worker advocates, however, point to the fatality and hospitalization cases as evidence the agency needs to adopt a rule specifically addressing the airborne spread of pathogens.

Attorney J. Larry Stine, a senior principal at Wimberly, Lawson, Steckel, Schneider & Stine P.C. in Atlanta, who represents processors, said the executive order won’t stop OSHA from starting inspections. “We never expected OSHA to do anything else,” Stine said.

Most of OSHA’s inspections have been in Midwest and Great Plains states, with Wisconsin accounting for eight probes and Nebraska four.

OSHA’s state counterparts initiated nine inspections of processing plants since April 28, with none attributed to a death, raising the total number of state probes since March 16 to 23. All told, there have been 61 federal and state inspections of processing plants since March 16.

The agency also had 65 open virus-related complaints involving processing plants as of May 25—the most recent date for which data is publicly available—though it wasn’t known how many of those led directly to investigations.

OSHA officials weren’t immediately available to respond to questions about the rise in processing plant inspections. However, at a House subcommittee hearing on May 28, the agency’s top administrator, Loren Sweatt, told lawmakers, “OSHA staff will continue to prioritize Covid-19 inspections, and will utilize all enforcement tools as OSHA has historically done.”

Late Start

The agency has six months to issue a citation following the start of an inspection. Stine said he hasn’t seen an example of how the agency is applying the good-faith exemption when deciding whether to cite an employer if the company can document it has tried to comply with OSHA and Centers for Disease Control and Prevention guidance.

OSHA’s April 28 enforcement memo said that when an employer determines it isn’t feasible to adopt protective measures recommended by that joint guidance, the company should document its reasoning and any actions that were taken instead.

The agency told inspectors that when considering whether to issue citations to processing plants, inspectors “will take into account good-faith attempts to follow” OSHA and CDC’s guidance for meat processors.

Debbie Berkowitz, director of the worker safety and health program at the labor-side National Employment Law Project in Washington, said OSHA inspections of processing plants initiated in May sometimes came after the agency didn’t open inspections in April following complaints about the same sites.

For example, OSHA received a complaint on April 3 about JBS USA’s plant in Grand Island, Neb., OSHA records show. The complaint, which alleged social-distancing guidance wasn’t being followed, didn’t prompt an inspection. But on May 12, OSHA opened a fatality/hospitalization-based inspection at the Grand Island plant.

“Clearly, voluntary compliance, and trusting dangerous industries to all of a sudden step up and protect workers on their own, is not working,” Berkowitz said.

Peter Dooley, a senior safety and health project coordinator for the National Council for Occupational Safety and Health, a worker advocacy federation based in Massachusetts, said the increasing number of inspections at meatpacking plants demonstrates current health practices and guidance aren’t working.

OSHA will continue to receive hospitalization and fatality reports until the plants make large-scale changes, such as increasing the flow of clean air, redesigning production lines to maintain six feet between workers, and reducing line speed, Dooley said.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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