By Brandi O. Brown, J.D.
Under the primary-jurisdiction doctrine, OSHA should be allowed to consider the worker’s concerns; even if that were not the case, the “significant measures” taken by the employer and the fact that there were no confirmed cases at the plant militated against injunctive relief.
Workers who claimed that the meat processing plant where they work is not adequately protecting them against COVID-19 were told by a federal district court in Missouri that the claims they raised should be taken instead to OSHA. That agency, the court explained, is better positioned to determine whether the plant’s actions constitute a public nuisance and create an unreasonably unsafe work environment. Even if the court had reached a different conclusion with regards to jurisdiction, it would not have granted the injunctive relief sought in light of the measures taken by the employer and the fact that there were no confirmed cases at the plant. The defendants’ motion to dismiss was granted (Rural Community Workers Alliance v. Smithfield Foods, Inc, May 5, 2020, Kays, G.).
Plants as “hot spots.” On April 23, in the midst of a national crisis related to the outbreak of COVID-19, the Rural Community Workers Alliance along with a Jane Doe plaintiff filed suit against Smithfield, based on its practices at a meat-processing plant in Milan, Missouri. Noting that several meat-processing plants owned by Smithfield have become “hot spots” for COVID-19 outbreaks, the plaintiffs contended that the employer had not implemented sufficient measures to protect workers. For example, it was not providing masks, implementing sufficient measures to ensure adequate distance between workers, allowing workers to take breaks to wash their hands or face, or allowing workers to cover their faces for coughs or sneezes or to use tissues. They also sought to prohibit the employer from penalizing workers who miss work because they are exhibiting symptoms.
Workers seek judicial intervention. The plaintiffs brought state-law claims for public nuisance and breach of duty. They also moved for a temporary restraining order and a preliminary injunction. Shortly thereafter CDC and OSHA issued a Joint Guidance providing supplemental guidance to meat-processing plants regarding COVID-19. It required, where “feasible,” that the plants implement many of the measures sought by the plaintiffs. The next day the defendant filed a motion to dismiss, arguing that pursuant to the primary-jurisdiction doctrine, the court should defer to OSHA in this case. It later amended that motion to specify USDA jurisdiction on the basis of an executive order that had delegated authority to the Secretary of Agriculture to take appropriate action “to ensure that meat and poultry processors continue operations consistent with” the OSHA and CDC guidance.
After a hearing on that motion, the court learned from supplemental briefs that the employer had implemented new policies and procedures and the plaintiffs agreed that the relief they now seek is more narrow and includes only changes to the employer’s “production practices,” including its line speeds, the need for additional breaks for hygiene, and policies related to sick-leave use. After making credibility determinations regarding declarations, from experts and others, provided by the parties, the court made certain findings of fact.
Among those, the court found that provision of tissues to employees on the production line was prohibited because it violated USDA health standards. It also found that the employer’s hand-washing policies and procedures were reasonable. Employees must wear gloves on the line, but when they leave, they remove the gloves and sanitize their hands. They also have to sanitize and don gloves before returning, and the employer administers hand sanitizer to employees to use on their gloves every 30 minutes. The employer also provides hand-sanitizing stations, allows employees to refill personal bottles from the company supply, and expects a shipment of small hand-sanitizer bottles soon. It has also enhanced cleaning and disinfection practices within the plant and has taken several measures to facilitate social distancing.
OSHA in better position. With regards to the employer’s motion to dismiss, the court concluded that it should be granted. OSHA (in coordination with the USDA) is “better positioned” to determine whether the employer is complying with the Joint Guidance. In fact, the court explained, the plaintiffs’ claims “succeed or fail” based on whether the employer is complying with that guidance and the determination “goes to the heart of” the agency’s “special competence” and “mission.” OSHA had shown interest, already, in the employer’s adherence to that guidance, requesting information from the employer about its practices the day before the suit was filed.
Furthermore, deference to OSHA/USDA would “ensure uniform enforcement of the Joint Guidance.” If the court were to rule on whether the employer were complying, that ruling would be binding only on this employer and the determination “could easily lead to inconsistent regulation of businesses in the same industry.” The court also dismissed the plaintiffs’ concerns about delay, noting that there were measures available through OSHA’s statutory framework if that agency failed to act quickly on the information it received from the employer.
Injunctive relief burden not met. Even were jurisdiction proper, the court added, the plaintiffs did not meet their “extraordinary burden” with regards to an affirmative preliminary injunction. First, the plaintiffs failed to demonstrate a threat of irreparable harm—the injury of potentially contracting the disease was too speculative under Eighth Circuit precedent. In the two cases cited by the plaintiffs, the plaintiffs were already suffering from illnesses. While the court was “not unsympathetic to the threat that COVID-19 presents” to the workers, it noted that the employer is now taking “significant measures” to protect essential workers and that there are no confirmed cases of the virus at the plant.
Moreover, the plaintiffs alleged only a potential harm and the court noted that “no essential-business employer can completely eliminate the risk that COVID-19 will spread to its employees through the workplace.” It noted that national and local guidance on this matter is “continuously evolving and changing” and that an injunction would deny the employer the flexibility it needs to make quick changes to procedures to maintain safety. Additionally, the plaintiffs failed to show a likelihood that they would succeed on the merits of their claims. Finally, the court concluded that the relief requested by the plaintiffs was impermissibly vague.
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