Brooks Law Digest: Worker Safety

In a case brought by the United Food and Commercial Workers Union, a Minnesota federal judge has held that the USDA’s Food Safety and Inspection Service’s adoption of the New Swine Inspection System (eliminating line speed limits) violated the Administrative Procedure Act because the agency rejected extensive public comment and eliminated line speed limits without considering the impact on worker safety.

A federal judge has granted the Occupational Safety and Health Administration’s request to dismiss a lawsuit brought against it by workers in the meatpacking industry seeking a writ of mandamus to compel the agency to obtain a court order directing a meatpacking plant “to abate imminent dangers to its employees related to the transmission of COVID-19.” The court determined that the relevant section of the Occupational Safety and Health Act “affords employees relief only in those instances where the Secretary has been presented with a finding of imminent danger by an OSHA inspector and has arbitrarily and capriciously rejected the recommendation to take legal action.”

Senate Bill 713, the “Safe Line Speeds During COVID-19 Act of 2021,” would direct the Secretary of Agriculture to temporarily suspend current and future waivers that allow for increased line speeds or reduced inspection staffing at meat and poultry slaughterhouses. The bill would also formally suspend implementation of the “New Swine Slaughter Inspection System” detailed in the final rule published in the Federal Register on October 1, 2019 and mandate a review of actions taken by federal agencies in response to the COVID–19 pandemic “to determine the effectiveness of those actions in protecting animal, food, and worker safety.” The full text of the bill is available here.

Maine House Bill 760 would remove the exemption that categorizes agricultural workers separately from “employees.” This change would ensure agricultural workers are covered by laws that place limits on mandatory overtime and set minimum wage and overtime rates.

Minnesota Senate Bill 1598, entitled the Safe Workplaces for Meat and Poultry Processing Workers Act, would require the appointment of a state “meatpacking industry worker rights coordinator” in the Department of Labor and Industry. The bill would also establish that meat-processing workers have a right to refuse to work “under conditions that the worker reasonably believes would expose the worker, other workers, or the public to an unreasonable risk of illness or injury, or exposure to illness or injury.” Meat-processing employers would be prohibited from retaliating against a worker for making a good faith refusal to work, and the bill would authorize civil and whistleblower enforcement of the Act along with requiring certain safety training, record keeping, and medical resources.

A new lawsuit alleges fifteen directors breached their fiduciary duty with regard to the company’s response to the COVID-19 pandemic. The complaint cites insufficient provision of PPE to workers, failure to warn employees of possible exposure to positive cases of the coronavirus, efforts to have the industry deemed “essential,” wrongful death lawsuits, and false and misleading statements regarding the company’s handling of the pandemic.

Minnesota House Bill 800, titled the Safe Workplaces for Meat and Poultry Processing Workers Act, would require the appointment of a meatpacking industry worker rights coordinator in the Department of Labor and Industry, grant meat processing workers the right to refuse to work “under conditions that the worker reasonably believes would expose the worker, other workers, or the public to an unreasonable risk of illness or injury,” and require safety training. The bill also includes protections for whistleblowers and guidelines to govern the administration of unemployment insurance claims for meat-processing workers.

President Biden has withdrawn an executive order that would have allowed poultry processing plants to slaughter 175 birds per minute.

Two lawsuits, both filed [Tyson complaint One and Tyson Complaint Two] by the estates or surviving family members of Tyson workers who died from contracting COVID-19 at their workplace, allege that the managers of meatpacking plants acted recklessly, lied to their employees about the risk COVID-19 posed, and placed bets among themselves on how many employees would contract the disease.

Smithfield Foods and a subcontractor have been fined more than $100,000 for COVID-19 worker safety violations by the California Division of Occupation Safety and Health.