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Meatpacking safety recommendations are largely unenforceable

The Tyson Foods pork plant is seen, Wednesday, April 22, 2020, in Perry, Iowa. AP photo

Federal recommendations meant to keep meatpacking workers safe as they return to plants that were shuttered by the coronavirus have little enforcement muscle behind them.

Posted: May 21, 2020 7:35 AM

MINNEAPOLIS (AP) — Federal recommendations meant to keep meatpacking workers safe as they return to plants that were shuttered by the coronavirus have little enforcement muscle behind them, fueling anxiety that working conditions could put employees' lives at risk.

Extensive guidance issued last month by the Occupational Safety and Health Administration and the Centers for Disease Control and Prevention recommends that meatpacking companies erect physical barriers, enforce social distancing and install more hand-sanitizing stations, among other steps. But the guidance is not mandatory.

“It’s like, ‘Here’s what we’d like you to do. But if you don’t want to do it, you don’t have to,’” said Mark Lauritsen, international vice president and director of the food processing and meatpacking division for the United Food and Commercial Workers International Union.

The pandemic is “the most massive workers’ safety crisis in many decades, and OSHA is in the closet. OSHA is hiding,” said David Michaels, an epidemiologist who was the agency's assistant secretary of labor under President Barack Obama. Michaels called on OSHA to make the guidelines mandatory and enforceable, which would include the threat of fines.

OSHA’s general guidance plainly says the recommendations are advisory and “not a standard or regulation," and they create "no new legal obligations.”

But the guidance also says employers must follow a law known as the general duty clause, which requires companies to provide a workplace free of recognized hazards. Critics say that rule is unlikely to be enforced, especially after President Donald Trump signed an executive order in April aimed at keeping meat plants open.

Already, examples have emerged of questionable enforcement efforts and pressure to keeping plants running:

— Shortly before Trump's order, state regulators in Iowa declined to inspect a Tyson Foods pork plant despite a complaint alleging workers had been exposed to the virus in crowded conditions. Documents obtained by The Associated Press show it took the Iowa division of OSHA nine days to seek a response from Tyson and eight more to get a reply. The state agency ultimately found Tyson's voluntary efforts to improve social distancing at the Perry plant were “satisfactory” and closed the case without an inspection. A week later, 730 workers — almost 60% of the workforce — had tested positive.

— In Kansas, the state softened its quarantine guidelines after industry executives pushed to allow potentially exposed employees to continue going to work, according to emails and text messages obtained by The Kansas City Star and The Wichita Eagle. The state had previously advised such employees to quarantine for two weeks, before conforming to the more lenient CDC guideline, which allows employees to continue working if they have no symptoms and use precautions. The move came after Tyson raised a concern with the state of rising worker absenteeism.

After Trump's executive order — developed with input from the industry — the Labor Department and OSHA said OSHA would use discretion and consider “good faith attempts” to follow safety recommendations. Employers would be given a chance to explain if some are not met. Agriculture Secretary Sonny Perdue made clear in letters earlier this month that the Department of Agriculture expected state and local officials to work with meat plants to keep them running. And he said any closed plants without a timetable to reopen had to submit protocols to the USDA.

The USDA did not respond to repeated requests to provide those company plans to the AP. When asked how guidelines would be enforced, a USDA spokesperson said enforcement was up to OSHA.

Major meatpackers JBS, Smithfield and Tyson have said worker safety is their highest priority. They provided the AP with summaries of their efforts to improve safety, but the plans themselves have not been made public. Tyson said because the temporary suspension of its operations was voluntary and the company was already meeting or exceeding federal guidance, it was not required to submit a reopening plan to the USDA.

One plan obtained by the AP, for the reopening of a JBS pork plant in Worthington, Minnesota, details multiple safety improvements, including installing physical barriers, increasing spacing between workers and requiring protective equipment. The plan includes photos. It says employees will be screened for health issues, but it makes no mention of requiring testing.

JBS spokesman Cameron Bruett said the plan “demonstrates the extraordinary measures” the plant has taken "to keep our team members safe as they provide food for the country.”

In an emailed response to questions about how guidance would be enforced and what role OSHA would play in protecting workers, the Department of Labor said OSHA received 55 complaints in the animal-processing industry and opened 22 inspections since Feb. 1.

Echoing language from the general duty clause, the agency also noted longstanding rules that require employers to provide a safe workplace.

“OSHA’s standards remain in place and enforceable, and they will continue to be as workers return to their workplaces,” a labor spokesperson said.

Michaels, the former OSHA official, said the clause has no preventive effect and is generally enforced only after a worker is injured. He said it's effective only in cases in which OSHA conducts an inspection and issues citations and the employer agrees to fix the problem — so any impact is felt months or years later.

Michaels said OSHA will not issue citations if employers are doing their best to eliminate a hazard but find it's not feasible.

Jeffrey Lancaster, founder and CEO of Lancaster Safety Consulting in Wexford, Pennsylvania, said violations of the general duty clause can get expensive, especially if companies are found to be repeat violators, have a willful violation, or fail to fix an issue.

“The laws have been in place,” he said. “It’s just a new ballgame – a new hazard.”

Minnesota is one of 22 states or territories with worker-protection agencies that cover private and government workers, and the state OSHA has the power to enforce the CDC and state Department of Health's COVID-19 safety guidelines under the general duty clause, spokesman James Honerman said.

The agency has two open investigations into the meatpacking businesses — one at a JBS plant in Worthington and one at a Pilgrim’s Pride plant in Cold Spring, said Honerman, who could not discuss the investigations because they are pending.

Lauritsen, with the food workers' union, said OSHA has not done enough to hold employers accountable. The union is advocating for access to daily testing for all meat-production workers, personal protective equipment if necessary and paid sick leave.

“By and large, if our members are healthy enough, if they are not sick or on quarantine, they are going to show up to do their job,” Lauritsen said. “But that doesn’t mean that they’re not anxious or not nervous.”

Minnesota Coronavirus Cases

Data is updated nightly.

Cases: 441935

Reported Deaths: 5885
CountyCasesDeaths
Hennepin918591461
Ramsey39405729
Dakota32551324
Anoka30638354
Washington19827221
Stearns17686184
St. Louis13453237
Scott1178693
Wright11485101
Olmsted1024870
Sherburne812364
Carver686636
Clay643278
Rice595266
Kandiyohi551069
Blue Earth533833
Crow Wing476573
Otter Tail449860
Chisago446331
Benton414885
Winona383946
Douglas370366
Nobles364646
Mower358026
Goodhue340757
Polk326754
McLeod321644
Morrison308743
Beltrami305746
Lyon298735
Itasca281143
Becker279438
Isanti279440
Carlton276942
Steele26879
Pine263813
Freeborn237219
Todd230029
Nicollet222136
Brown212334
Mille Lacs211645
Le Sueur206515
Cass203823
Meeker197433
Waseca187515
Martin168226
Wabasha16712
Roseau164916
Hubbard146937
Redwood138527
Renville136139
Houston133213
Dodge13134
Chippewa130632
Cottonwood125118
Fillmore12084
Wadena118214
Rock108511
Sibley10757
Aitkin106633
Watonwan10548
Faribault103214
Kanabec96818
Pennington95915
Pipestone92522
Yellow Medicine92514
Murray8585
Jackson84510
Swift82617
Pope7355
Marshall70115
Stevens6968
Clearwater68114
Lac qui Parle65216
Lake62215
Wilkin6179
Koochiching57910
Lincoln4771
Big Stone4513
Unassigned43568
Grant4247
Norman4218
Mahnomen4077
Kittson36619
Red Lake3154
Traverse2433
Lake of the Woods1741
Cook1130

Iowa Coronavirus Cases

Data is updated nightly.

Cases: 300884

Reported Deaths: 4197
CountyCasesDeaths
Polk44949440
Linn17563269
Scott15228161
Black Hawk13552228
Woodbury12896175
Johnson1191749
Dubuque11229148
Pottawattamie8863112
Dallas874169
Story857433
Webster464768
Cerro Gordo458766
Sioux452451
Clinton445461
Warren430637
Marshall424561
Buena Vista389029
Muscatine382275
Des Moines377340
Plymouth347967
Wapello336796
Jasper315955
Lee310828
Marion298852
Jones268949
Henry262130
Carroll252233
Bremer240048
Crawford227622
Boone214116
Washington213531
Benton207543
Mahaska189936
Jackson189631
Tama184757
Dickinson183225
Delaware171136
Kossuth169241
Clay165319
Wright161724
Fayette157022
Buchanan156920
Hamilton156828
Hardin153129
Harrison152961
Winneshiek150819
Clayton149848
Cedar149119
Butler145423
Page143115
Floyd137236
Cherokee137125
Mills135216
Lyon133132
Poweshiek131024
Hancock127924
Allamakee125927
Iowa122122
Calhoun12159
Jefferson118623
Grundy118522
Winnebago117229
Madison11639
Mitchell114634
Louisa113729
Cass111741
Chickasaw110111
Sac110115
Emmet109931
Appanoose108838
Union107922
Humboldt103919
Guthrie102124
Shelby101026
Franklin99818
Unassigned9370
Palo Alto8969
Keokuk84225
Montgomery82722
Howard81119
Monroe79918
Pocahontas77211
Clarke7717
Ida73530
Greene6837
Davis68221
Adair68120
Lucas6458
Osceola6349
Monona62316
Taylor5889
Worth5873
Fremont5005
Van Buren49112
Decatur4744
Ringgold4229
Wayne41321
Audubon4118
Adams2923
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