May 6, 2020
On May 5, 2020, a federal district court granted a motion to dismiss filed by Smithfield Foods in response to a widely publicized workplace health and safety complaint filed by a workers’ advocacy group. Rural Community Workers Alliance and Jane Doe v. Smithfield Foods, Inc. Citing a pending OSHA investigation at the plant, the court held that the primary jurisdiction doctrine warranted dismissal of the action to allow OSHA (in coordination with the United States Department of Agriculture (USDA)) an opportunity to consider the issues presented in plaintiffs’ complaint. Judge Greg Kays also concluded that plaintiffs failed to satisfy the traditional requirements for a preliminary injunction. The opinion forecasts several recurring themes of COVID-19 litigation and demonstrates the importance of creating a strong record of an employer’s good-faith efforts to protect its workers.
Plaintiffs’ complaint alleged that Smithfield was not taking adequate steps to prevent transmission of the virus to protect workers from the risk of COVID-19 infection. The complaint asserted that Smithfield has disregarded industry guidelines issued by the Centers for Disease Control (CDC) and failed to implement precautions to keep its workers and the local community safe from the virus. In particular, the complaint raised concerns about inadequate social distancing, prohibiting workers from taking a break to wash their hands or face, and inappropriate plans for testing and contact tracing. The complaint also alleged that Smithfield’s sick leave policy penalized workers for missing work even if they exhibited COVID-19 symptoms. The complaint sought only injunctive and declaratory relief and not monetary damages. Citing news reports that several meat processing plants in the country have been identified as major COVID-19 “hot spots,” plaintiffs claimed that Smithfield’s operations constituted a public nuisance under Missouri law, and that Smithfield violated its duty under state law to provide a safe workplace. As in other controversies involving meatpacking operations in which labor unions and other advocacy groups have raised safety complaints, one of plaintiffs’ principal concerns is the speed of the production line.
The court’s opinion recounted actions taken by the federal and state governments in response to the COVID-19 pandemic, including public health emergency orders issued by President Trump and Missouri’s governor. The court also summarized the principal provisions of joint interim guidance issued by CDC and OSHA on April 26, 2020, which outlines numerous measures meatpacking companies (which are deemed essential businesses pursuant to guidance issued by the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA)) should take to reduce the risk of virus transmission among their employees. Judge Kays noted that OSHA had already initiated a “Rapid Response Investigation” on the day before the complaint was filed, and that this matter is still pending.
The court made specific findings regarding the numerous safety-related steps undertaken by Smithfield in response to the COVID-19 pandemic. These include thermal screening and mandatory quarantine of employees exhibiting COVID-19 symptoms, modification of the company’s attendance policy so that employees missing work because of COVID-19 will not be penalized, and eliminating health insurance co-pays for COVID-related testing and treatment. The court found that Smithfield provides all workers with face masks upon entry to the plant, administers hand sanitizer to employees every thirty minutes, and has added more than 100 hand-sanitizing stations throughout the facility. The company has implemented enhanced cleaning and disinfection procedures for frequently touched surfaces. As to social distancing, the company has staggered shift start times, and lunch and break times, and has taken other measures to avoid having large numbers of workers congregating in break rooms or around time clocks. In summarizing these and other measures taken by Smithfield, the court characterized the company’s actions as “reasonable under the circumstances.” The court also explicitly stated that one of plaintiff’s unfulfilled requests – decreased line speed – was not a measure recommended in the CDC/OSHA joint guidance and that plaintiffs’ experts otherwise provided “no specific opinion regarding whether [Smithfield] is currently in compliance” with that guidance. The court’s assessment was informed by an expert witness report prepared by a former OSHA head retained by Smithfield to assess its workplace safety initiatives.
The court concluded that dismissal was appropriate because the two traditional requirements of the primary jurisdiction doctrine applied. First, the court reasoned that the merits of plaintiffs’ claims will hinge on the determination of whether the company is complying with the CDC/OSHA joint guidance for industry operations, a matter that OSHA, in coordination with the USDA, is better positioned to assess. Second, the court concluded that deference to OSHA/USDA will ensure uniform national enforcement of the regulatory guidance. The court rejected plaintiffs’ argument that deferral would result in delay that might adversely impact employees and the community, citing emergency relief procedures available through OSHA’s statutory framework.
The court concluded that plaintiffs’ complaint also failed to satisfy the traditional requirements for a preliminary injunction. As to the irreparable harm requirement, Judge Kays determined that death or serious illness is only a possibility on the facts presented. He noted that there were no confirmed cases of COVID-19 at the facility and that the Company was taking significant steps to reduce the possibility of virus spread, and concluded: “no one can guarantee health for essential workers – or even the general public – in the middle of this global pandemic.” The court also found that the balance of harms factor favored the employer. After summarizing the many remedial steps Smithfield took to protect its workers in accordance with regulatory guidelines, the court stated that employers in essential businesses must “make meaningful, good faith attempts to reduce the risk” while remaining in business to serve national interests. On the merits, the court was skeptical of plaintiffs’ public nuisance claim, and observed that the risk of “potentially contracting” COVID-19 was too speculative an injury to warrant injunctive relief. The court also concluded that the terms of the injunctive relief requested by plaintiffs were impermissibly vague under Rule 65.
Takeaways for Employers
This is an important first win for the employer, although it is not the end of the dispute. Among other things, the complaint was dismissed without prejudice. The ultimate outcome will hinge both on the results of the pending OSHA investigation and whether there is a COVID-19 outbreak at the plant in the coming weeks. Labor unions and other advocates will continue to press for operational changes in the meat processing industry across the country, and may continue to pursue options in this litigation. The court’s summary of the remedial steps taken by the employer and its reliance on guidance issued by regulatory authorities, provide a good roadmap for employers in a variety of industries. And the court’s assessment of the evidentiary burdens facing worker advocates and other plaintiffs trying to extend common law theories to the current pandemic may be useful in other litigations, particularly in cases in involving companies in essential industries.
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