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Failure to follow guidance may lead to meatpacker liability


Workers in the meat and poultry processing industries are back on the job throughout the United States, but reports of COVID-19 infections among plant workers and questions about safety protocols and government guidance could leave employers exposed to liability and workers compensation claims, experts say.

Meatpacking and poultry processing companies could face liability “from a couple of potential sources,” said Eric Conn, founding partner of Washington law firm Conn Maciel Carey LLP. “First, there is (U.S. Occupational Safety and Health Administration) regulatory and compliance liability.”

These employers may also face workers compensation and death benefit claims, and potentially personal injury lawsuits if a community outbreak in a rural area is tied to the local plant, he said.

More than 115 meat and poultry processing facilities in 19 states reported workers infected with COVID-19, the U.S. Centers for Disease Control and Prevention said in a report released Friday. The industry, which employs about 130,000 workers, has reported 20 deaths and nearly 5,000 cases, the agency said.

And COVID-19 outbreaks at meatpacking and poultry processing plants are continuing. The Missouri Department of Health and Human Services reported Friday that more than 300 asymptomatic workers at a pork processing plant in Saint Joseph, Missouri, owned by Triumph Foods LLC, tested positive for COVID-19. The health department tested an additional 1,000 workers at the plant April 29, but results have not yet been released.

OSHA and CDC released guidance April 26 for meat and poultry processors. Two days later, President Donald Trump issued an executive order directing the processors to continue operations.

The U.S. Department of Labor also released a memo on April 28 stating that the U.S. Department of Agriculture maintained the authority to take “all appropriate action to ensure that meat and poultry processors continue operations” during the pandemic, and that the department has the authority to ensure that plants follow CDC and OSHA guidance.

Although President Trump publicly stated that the executive order would “solve any liability problems,” the order does not expressly include language waiving liability for these companies.

Questions also remain as to how the government will police adherence to the guidance and what limitations of liability may be applied, said Melanie Neumann, Chicago-based executive vice president and general counsel of Matrix Sciences International Inc., a food production advisory firm.

“The measures are comprehensive — but they are voluntary. They are just advice,” said Debbie Berkowitz, worker health and safety program director of the National Employment Law Project in Washington. “Companies can choose to implement the recommendations such as social distancing. … Without OSHA requirements to implement these basic safety measures, the disease will continue to spread in the workplace and out into the community.”

The Department of Labor’s memo said that OSHA will enforce this guidance at its “discretion” and is asking employers to conduct their own worksite assessments to identify COVID-19 risks and implement prevention strategies.

The department’s statement also noted that because these meatpacking and poultry processing facilities were ordered to maintain operations under the Defense Production Act, the guidance should not be construed “to indicate that state and local authorities may direct a meat and poultry processing facility to close, to remain closed, or to operate in accordance with procedures other than those provided for” in the department’s meat processing guidance.

“Generally speaking, the steps that employers are advised to take by the CDC and OSHA are not regulatory requirements,” Mr. Conn said. That said, plants that fail to follow the advice could still be cited for violation of the OSHA general duty clause, which may be invoked when a serious hazard is recognized but no applicable regulation exists.

With all of the uncertainty, meatpacking and poultry processing companies would be wise to appoint someone as a “COVID czar” responsible for staying on top of new pandemic guidance, conducting regular risk assessments and implementing controls to prevent the spread of the virus, Ms. Neumann said. 

“This will go a long way in reducing risk” and allow a company “to point to that risk assessment” when introducing controls, she said.

Some of these controls may include shortening shifts, staggering start and end times and adding additional shifts to reduce the number of employees in the facility at any given time, as well as testing employees, Ms. Neumann said.

But “the jury is still out” on what may be considered going “too far” when it comes to COVID-19 testing at the workplace, and the guidance is silent on what happens if employees refuse tests and how employers should handle the time period between testing and results, she said. 

One of the biggest mistakes an organization can make is to assume that employees are educated about COVID-19 and know what to do in the event of exposure or diagnosis, said Eric Glass, Franklin, Tennessee-based senior risk and safety advisor at safety science company UL LLC. “Educating your employees should be an ongoing, never-ending effort, even after this pandemic is over,” he said.

If an employee does receive a COVID-19 positive notification, the company should have a “situational matrix” that outlines the internal actions that should be taken, which may include notifying other employees that may have been exposed to someone who tested positive, cleaning and disinfecting work areas and quarantining guidelines, Mr. Glass said. 

Employers may also consider finding creative ways to help employees minimize exposure in the community by providing face coverings, a transportation allowance so they don’t have to carpool, or lodging if they need to isolate from family members, said Martin Wiedmann, the Gallert Family Professor in Food Safety at Cornell University in Ithaca, New York.

“There are a number of possibilities that are not intrusive but offer help,” he said.