Worker safety advocates reject the notion that state and local governments can’t act to prevent coronavirus infections at meat processing plants President
The problem with the Labor Department and Occupational Safety and Health Administration’s position that Trump’s order preempts state and local action is that the federal agencies declined to enact an emergency health rule, said Patricia Smith, who served as the DOL’s top attorney during the Obama administration.
“There isn’t a health standard for infectious diseases,” said Smith, now of counsel with the National Employment Law Project. Without a rule, state and local governments have no option but to set their own requirements, Smith said.
Differences over who sets requirements for protecting poultry and meat processing workers from coronavirus infections are already playing out in one federal court. That number could grow if employers invoke the executive order to avoid complying with state and local standards that go beyond the federal recommendations.
Smithfield Foods Inc. is being sued by worker safety advocates in federal court in Missouri for allegedly failing to protect workers from the coronavirus at its meat-processing plant in Milan, Mo., after at least eight workers had to stay home with Covid-19 symptoms. As of Wednesday, the federal government hadn’t become involved.
The lawsuit is the first Covid-19 related case that seeks a judge’s order to address safety issues at a workplace.
Trump’s April 28 executive order requires meat and poultry processing plants to remain open to prevent food shortages. More than a dozen plants had closed after hundreds of workers contracted the coronavirus. OSHA has opened inspections at several plants with Covid-19 outbreaks.
Shortly after the order was issued, DOL and OSHA announced that they likely wouldn’t cite plants for health violations if those employers try in “good faith” to follow guidance from OSHA and the Centers for Disease Control and Prevention.
Greg Dillard, an industry-side safety attorney at Baker Botts L.L.P. in Houston, said OSHA’s guidance is consistent with prior publications on protecting workers from Covid-19.
“The guidance is good and on point—it assesses your particular workplace, identifies areas of potential hazards or transmission of the virus, and implements reasonable controls, consistent with good industry practice,” Dillard said.
The federal agencies also said April 28 that state and local governments couldn’t require employers to satisfy health requirements that go beyond the guidance’s recommendations.
State and local authorities have lost their enforcement power over meat processors because of the executive order and various federal agencies’ involvement in plant safety, Alexandra B. Cunningham, an attorney representing Smithfield, said during a Thursday hearing in that case.
“It’s clear that the Secretary of Agriculture and USDA are going to preempt state and local entities,” said Cunningham of Hunton Andrews Kurth in Richmond, Va. The DOL and the current head of OSHA also issued a statement to clarify their enforcement policy, she said.
“They may not be enforcing in a punitive way,” she said, adding that there’s no indication that they don’t plan to cite employers.
Smith and other worker-side attorneys, however, questioned whether the federal government could overrule state or local actions to protect workers and public health.
Federal OSHA’s rules and policies set the minimum requirements for states to follow, not ceilings, said Adam Pulver, an attorney for the Public Citizen Litigation Group in Washington. State workplace safety agencies approved by OSHA have the power to set requirements that are stricter than the federal government’s.
State and local governments have also regulated some workplace hazards when they pose a problem to the general public such as building code mandates for construction sites.
The DOL and OSHA statement said the department would consider an employer’s request to participate in litigation supporting the business’ compliance program if a good faith attempt had been made to comply with the guidance.
OSHA hasn’t been involved directly in private lawsuits regarding worker injuries and illnesses, Pulver said. An employer’s claim that they were following OSHA rules or weren’t cited by OSHA isn’t an automatically accepted defense against a worker’s claim.
Pulver and Smith both said the Defense Production Act, which Trump invoked in his order, doesn’t give the president authority to address liability.
Courts and previous administrations have said the DPA doesn’t authorize anyone performing under contracts issued pursuant to the act or otherwise to violate federal or state law, including state tort law, Pulver said.
David S. Muraskin of Public Justice, one of the groups representing the Rural Community Workers Alliance, a group organizing meatpacking workers in Missouri, said that with the OSHA guidance, the agency is “waving its hands and saying goodbye as part of the broader process here.”
The good faith provisions in the new statement aren’t as controversial.
OSHA has used “good faith” provisions before for employers complying with new rules, but in this case OSHA is applying good faith to recommendations employers only need to try to meet, Pulver said.