OSHA fines Smithfield Foods over outbreak

Published 6:25 pm Tuesday, September 29, 2020

The U.S. Occupational Safety and Health Administration has fined Smithfield Foods $13,494 for failing to protect employees from COVID-19 at its Sioux Falls, S.D., meatpacking plant.

The plant, which is one of the largest pork processing facilities in the United States and employs roughly 3,700 people, was one of several meatpacking plants to temporarily close during the early days of the pandemic due to an outbreak of the disease among workers. According to OSHA, at least 1,294 of those employees ended up contracting the virus between March 22 and June 16, resulting in 43 hospitalizations and four deaths.

OSHA, which is tasked with enforcing standards for safe working conditions, cited the company for one violation of the general duty clause — a reference to Section 5(a)(1) of the federal Occupational Safety and Health Act. This clause requires employers to provide a workplace free from recognized hazards that can cause death or serious harm.

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According to OSHA’s website, employers may be cited for violation of this clause if a hazard likely to cause death or serious physical harm exists in their workplaces and the employer does not take reasonable steps to prevent or abate said hazard. Specifically, the citation accuses Smithfield of failing to develop or implement “timely and effective measures” to mitigate viral exposure on or prior to March 23, such as staggering shifts to minimize the number of employees entering or exiting the facility and accessing common areas simultaneously and slowing production line speeds to allow employees to stand further apart. The company has, however, implemented other precautions over the past several months, such as not penalizing workers for missing work due to a COVID-19 diagnosis or quarantine, installing extra hand-washing stations and physical barriers, increasing personal protective equipment and using thermal scanners to determine if an employee is running a fever.

Keira Lombardo, Smithfield’s executive vice president of corporate affairs and compliance, called the citation “wholly without merit,” and said the company plans to contest it.

“After an investigation that spanned many months and encompassed the review of over 20,000 pages of documents and 60 interviews, OSHA has issued only a singular citation under its catchall ‘general duty clause’ for conditions that existed on and prior to March 23, 2020,” Lombardo said. “This is notable because OSHA did not issue guidelines for the meatpacking industry until April 26, 2020.”

For months, Smithfield has argued that its plants simply aren’t designed for social distancing due to their assembly-line-like production process that often requires employees to work in close proximity.

Smithfield filed a lawsuit in June to block OSHA from gaining access to information the company provided to the South Dakota Department of Health concerning the Sioux Falls plant outbreak, but settled the matter out of court in July. A memorandum from U.S. Centers for Disease Control officials to the South Dakota Department of Health, included with court documents in that suit, states CDC officials observed the ground seasoned pork department at the Sioux Falls plant had reduced its line speed to accommodate socially distanced employees as of their April 16-17 walkthrough. This was two days after the plant had shut down, so few employees were working those days.

“Among the few employees that were present in the plant during our walk throughs, we observed several who were congregating less than 6 feet apart when away from their workstations,” the memo states. “We observed some employees still working at the plant either not wearing facemasks or wearing them incorrectly (e.g., wearing them over the mouth but not the nose).”

OSHA claimed in a Sept. 10 press release that the $13,494 fine was “the maximum allowed by law.” But George Washington University professor Dr. David Michaels, who served as assistant secretary of labor for OSHA from 2009 through January 2017, calls this claim “disingenuous.”

“Yes, it is the maximum for a single violation of the general duty clause, but OSHA decided to limit its citations to a single violation of that clause,” Michaels said, when contacted by The Smithfield Times for an expert opinion. “That was a choice. OSHA could have issued numerous citations for the various departments where Smithfield failed to protect workers, and it could have designated them as willful violations, with penalties ten times greater than the ones imposed.”

“Every OSHA enforcement action sends a message,” he continued. “Since an important objective of enforcement actions is to warn other employers that failure to protect workers has consequences, the decision to issue a minuscule fine to Smithfield has enormous implications for COVID-19 exposed workers across the country. Through OSHA’s actions, Labor Secretary Eugene Scalia is sending the clear message to employers that they need not worry about OSHA inspections — they can operate as they please, permitting uncontrolled exposure to the deadly virus, since they have no reason to fear a costly OSHA penalty no matter how many workers are sickened or killed.”

Jim Stanley, who retired in 1996 as deputy assistant secretary of labor and now serves as president of a workplace safety consulting firm, however, said OSHA will typically group all instances of one issue, such as employee exposure to a contaminant, into a single violation, as they have done in this case. Some states, Virginia among them, enforce OSHA at the state level, which allows regulators to impose stricter rules and penalties than the federal maximums, Stanley explained. But South Dakota isn’t one of these states.

In July, Virginia became the first in the nation to adopt temporary OSHA standards specific to COVID-19, but for those standards to apply, the plant itself, not just its corporate headquarters, would need to be located somewhere in the commonwealth.