OSHA criticized for proposed penalties on meatpacking plants

Two meatpacking plants were recently slapped with proposed penalties for failing to protect employees from exposure to the coronavirus. But a former Obama administration official and a union representing workers at meatpacking plants said the fines were inadequate.

The Occupational Safety and Health Administration (OSHA)—an agency within the U.S. Department of Labor—cited JBS Foods Inc. in Colorado for “failing to provide a workplace free from recognized hazards that can cause death or serious harm,” OSHA announced in a Sept. 11 news release. According to OSHA, following its May 2020 inspection, Greeley-based JBS Foods also neglected to “provide an authorized employee representative with injury and illness logs in a timely manner.”

OSHA proposed $15,615 in penalties.

JBS Foods has 15 business days from receipt of the citations and penalties to either comply, request an informal conference with OSHA’s area director or contest the findings before the Occupational Safety and Health Review Commission.

“Employers need to take appropriate actions to protect their workers from the coronavirus,” OSHA Denver Area Director Amanda Kupper said in the release. “OSHA has meatpacking industry guidance and other resources to assist in worker protection.”

While OSHA noted the penalty for violating “the general duty clause” was the maximum permitted by law, the president of the United Food and Commercial Workers (UFCW) International Union, Marc Perrone, suggested the fine was woefully insufficient given the circumstances. According to UFCW, an outbreak of COVID-19 at JBS’ plant led to eight worker deaths and more than 200 infections.

“The failure of the federal government to protect American workers and our nation’s food supply has reached new lows,” Perrone said in a news release. “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.”

COVID-19 has caused 122 deaths of meatpacking workers, and 18,000 meatpacking workers have been infected or exposed to the disease, according to UFCW, which explained the figures only include workers represented by the union.

OSHA also recently cited Smithfield Packaged Meats Corp. in South Dakota for failing to protect employees from exposure to the coronavirus and proposed a penalty of $13,494. According to OSHA, at least 1,294 Smithfield workers contracted the disease, with four deaths in the spring of 2020.

David Michaels, Ph.D., a former high-ranking Labor Department official under the Obama administration, said in a tweet that OSHA could have issued several citations against Smithfield—“one for each of the many areas” where the agency determined the company “failed to protect workers.” And if OSHA determined Smithfield’s failure to protect workers was “willful,” it could have imposed a penalty ten times as high, said Michaels, who from 2009 to January 2017 served as the U.S. Assistant Secretary of Labor for OSHA.

“OSHA went very very easy on Smithfield,” he tweeted.

Considering the number of workers who fell ill, OSHA could have imposed a multi-million dollar fine against Smithfield, Michaels added in a separate Tweet response.

“While still a tiny amount for a huge global corporation, it would have sent a powerful message to other firms and therefore made a contribution toward deterrence,” he said.

Smithfield, trade group respond 

Keira Lombardo, executive vice president of corporate affairs and compliance with Smithfield Foods, said the company planned to contest OSHA's citation, which she described as "wholly without merit."

"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 via email. "This is notable because OSHA did not issue guidelines for the meatpacking industry until April 26, 2020."

Smithfield implemented "extraordinary measures on our own initiative to keep our employees as healthy and safe as possible so that we could fulfill our obligation to the American people to maintain the food supply," Lombardo added. "We incurred incremental expenses related to COVID-19 totaling $350 million during the second quarter alone. Ironically, OSHA then used what we had done as a model for its April 26 guidance."

Representatives for JBS and OSHA did not respond to requests for comment.

After OSHA announced the proposed penalty against Smithfield, the North American Meat Institute (NAMI) came to the defense of industry.

"Notwithstanding inconsistent and sometimes tardy government advice, (‘don’t wear a mask/wear a mask’/April 26 OSHA guidance specific to the meat and poultry industry) when the pandemic hit in mid-March, meat and poultry processing companies quickly and diligently took steps to protect their workers," the trade association said in a statement. "Companies had to overcome challenges associated with limited personal protective equipment, they implemented screening systems to keep sick employees out of plants, [and] developed COVID-19 plans with administrative and engineering controls to protect workers, which included and but were not limited to the CDC/OSHA guidelines."