Former Occupational Safety and Health Administration officials and labor experts lambasted the agency for issuing minimal citations at food processing facilities, which have been hit particularly hard by the coronavirus pandemic.
Last week, OSHA issued coronavirus-related citations and proposed fines to a Smithfield Foods plant in Sioux Falls, South Dakota, and a JBS USA plant in Greeley, Colorado, for failing to protect their workers from virus outbreaks. While the agency previously issued several other coronavirus-related citations, these were the first under the legal requirement known as the “General Duty Clause” that applies in situations without specific standards and “is a more stringent standard” to meet, said Rebecca Reindel, safety and health director at the AFL-CIO. Under the clause, an employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
Since the onset of the pandemic, OSHA has come under heavy criticism for what worker safety advocates say has been the agency’s failure to protect workers and issue emergency temporary standards to hold companies accountable for preventable harm as the novel coronavirus spread across the country.
Food processing plants, where workers typically work in close quarters, became hotspots for coronavirus outbreaks in the spring. At the Smithfield plant, 1,294 workers tested positive for COVID-19 and four died. At the JBS plant, 290 tested positive and six died, The Washington Post reported on Sunday. OSHA cited each plant for one “serious” violation, meaning hazards in the workplace could lead to serious physical harm or death, and proposed $13,494 and $15,615 fines for Smithfield Foods and JBS, respectively. The penalties are “proposed” because the companies can contest them (which they both said they would) or reach settlement with OSHA if they take certain steps to mitigate risks.
“Given the outrageously dangerous situation at those meat factories, as evidenced by the large number of workers sickened and killed, OSHA could have issued multiple citations for not protecting workers in different parts of the plant and doing different work,” Dr. David Michaels, former Occupational Safety and Health Administration administrator who served from 2009 to 2017, told Government Executive on Monday. “Further, these could have been ‘willful’ violations, since Smithfield and JBS clearly knew the hazard existed and it was feasible to abate the hazard. Each willful violation has a maximum penalty of $134,940.”
The “minuscule” proposed penalties send “a message to meat factories that they need not worry about OSHA inspections—they can operate as they please, no matter how many workers are sickened or killed,” he added. Labor Secretary Eugene Scalia “is sending a message that pork shoulders and steaks are more important than the lives and lungs of working people.”
Following the news about JBS, Marc Perrone, international president of the United Food and Commercial Workers International Union, which represents 1.3 million workers, said the federal government has “reached new lows” in failing to protect American workers.
“With this latest ‘so-called fine,’ OSHA and the Department of Labor prove beyond a shadow of a doubt that they do not care about holding irresponsible corporations accountable for the lives lost or worker safety,” he said in a statement on Saturday.
In addition to former officials and labor groups, Sen. Elizabeth Warren, D-Mass., issued a sharp rebuke of OSHA last week. “OSHA shrugged as workers died, then issued the lowest possible fine for endangering thousands of workers, sending a message that companies won’t face real accountability,” she said, regarding the Smithfield citation. In late-May, she and five other Democratic senators asked the Labor Department’s inspector general to review the agency’s actions during the pandemic, which the IG said it plans to do.
The agency disputed assertions that it has not enforced worker protections. “OSHA is committed to protecting America’s workers during the pandemic and has been working around the clock to that end,” a Labor Department spokesperson told Government Executive. “OSHA utilizes existing safety and health standards and the statutory General Duty Clause, and considers CDC guidelines when determining violations of workplace safety requirements as they relate to COVID-19.”
OSHA also issued citations for healthcare facilities in New Jersey and Louisiana, and a Veterans Affairs hospital in Indiana on Friday and, like the first group of citations, were not under the “General Duty Clause.” States have been using their own citations, but all these federal citations are happening now because the statute of limitations for citations is six months and many of these incidents occurred months ago, Reindel said.
“Where [was OSHA] when people were getting sick and were hospitalized? When people were dying?” Debbie Berkowitz, National Employment Law Project’s Worker Health and Safety Program director and former OSHA policy advisor, told The Washington Post. “Just think about how many lives could have been saved and how many people may not have gotten sick.”
This story was updated with a comment from the Labor Department.