(CN) — In a ruling that could help quell the concern of disruption in the food supply, a Smithfield Foods meat-processing plant in Missouri can continue to operate without substantial interruption after a federal judge dismissed a lawsuit seeking better protections against Covid-19 for its workers.
The Rural Community Workers Alliance and a plant worker known only as Jane Doe filed the lawsuit against Smithfield Foods and Smithfield Fresh Meats Corp. on April 23, seeking injunctive relief from the working conditions which they claimed put the workers, and by extension the surrounding community in Milan, Mo., at risk for contracting the virus.
Smithfield, one of the largest meat producers in the world, has already closed several of its plants around the United States due to Covid-19 outbreaks among its employees.
The lawsuit claimed Smithfield operated its plant in direct violation of the Centers for Disease Control and Prevention guidelines, including by keeping inadequate distance between workers, prohibiting them from taking a break to wash their hands or face, preventing employees from covering their faces if they need to cough or sneeze, implementing a sick-leave policy that penalizes workers for missing work even if they are exhibiting Covid-19 symptoms, and failing to implement plans for testing and contact tracing.
The suit sought an order requiring Smithfield to provide masks, implement social distancing, give employees an opportunity to wash their hands while on the line, provide tissues, change its leave policy to discourage people from showing up to work when they have symptoms of the virus, give workers access to testing, develop a contact-tracing policy and allow plaintiffs’ expert to tour the plant.
Smithfield filed a motion to dismiss, arguing the plaintiffs’ complaints should be made to the Occupational Health and Safety Administration.
In a 24-page opinion Tuesday, U.S. District Judge Greg Kays dismissed the lawsuit, citing changes that Smithfield has made since the lawsuit was filed.
“Plaintiffs allege that because the plant is not abiding by the joint guidance, it constitutes a public nuisance and has created an unreasonably unsafe workplace,” Kays, a George W. Bush appointee, wrote. “Thus, plaintiffs’ claims both succeed or fail on the determination of whether the plant is complying with the joint guidance. Due to its expertise and experience with workplace regulation, OSHA…is better positioned to make this determination than the court is.”
Attorney David Muraskin, who represented the plaintiffs, said the ruling and the changes made by Smithfield represent the power of worker organization.
“What we read the court is saying is because of the substantial changes that have happened from when we filed the suit to when the court issued its ruling, it was not going to make the more nuanced changes that we were asking for,” Muraskin said in an interview. “We disagree with that, but fundamentally what the court is saying is that what Smithfield did made people safer and that’s something all workers should take pride in, particularly the workers in this case, is that they were able to have their voices heard.”
In a statement, Smithfield said it was pleased that the court recognized “the significant measures” taken to ensure employee safety.
“From the start, we stated that this lawsuit was frivolous, full of specious allegations that were without factual or legal merit and that the assertions were based on speculation, hearsay, anonymous declarations and outdated information,” the company said. “This was nothing more than an attempt by a number of interconnected groups to promote their agenda through outrageous accusations.”
Smithfield added hand sanitation stations, enhanced the cleaning and disinfecting of commonly touched surfaces and increased social distancing throughout the plant, especially at time clock stations, according to court documents.
Muraskin is still skeptical, mainly because Smithfield has not allowed an independent inspector to view the standards that have been put in place.
“If you take Smithfield's word for it, and at this point I’m very reluctant to do that, but if you take Smithfield’s word for it there have been a substantial number of changes that should make people safer. We don’t think it’s enough to fully protect the community, but it will make people safer,” he said.
The attorney said passing the issue to OSHA is “peculiar” because the agency has no ability to do anything.
“There are no mandatory OSHA guidelines right now,” Muraskin said. “OSHA has said they aren't going to inspect these plants and without an inspection OSHA can't really act.”
Dr. Kenneth Rosenman, professor and medicine chief for Michigan State University’s Division of Occupational and Environmental Medicine, said OSHA almost never shuts a facility down.
He said many times an OSHA inspector can make recommendations and the company will implement the changes immediately, but he added an investigation could take months.
Complicating issues is the relative unknown surrounding Covid-19.
“For silica or asbestos, for example, there are standards,” Rosenman said. “If the level is such you have to provide protective equipment, you have to say this area is a high-risk area, you have to provide education and training. There is no such thing for Covid. We know about social distancing, we know about washing hands. We know you can get it from asymptomatic individuals, but that's not part of any OSHA standard.”
While the ruling would appear to alleviate public concerns over the nation’s meat supply, Muraskin said there should be no concerns at all.
“The notion that there is a problem in our food chain is a total myth created by Smithfield and Tyson in order to try to get more of a free reign for how they operate,” the attorney said. “There are months upon months of beef and pork and other meat in cold storage which could be distributed by the government. There's also been a substantial drop in consumption as a result of people not going out to dinner as much and staying at home. So, there is no supply chain problem. This is an absolute myth made up by businesses to justify misconduct and it should be rejected universally by anyone with common sense.”
Muraskin pointed to a May 1 report by the Institute for Agriculture & Trade Policy that concludes that there is enough meat in cold storage to fully supply the country’s grocery stores for the next 18 months, even if all production was halted during that time.
Muraskin is not sure if any additional action will be taken on behalf of his clients. That decision could be based on Smithfield’s continued commitment to employee safety.
“If Smithfield thinks that it can move on and go back to business as usual, it’s got another thing coming,” he said. “People are going to be out there protecting these workers.”
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