The problem is that while workers were deemed “essential,” they were ignored by employer practices and lax regulations allowing rapid COVID-19 transmission in the workplace. As illnesses and deaths mounted, the former Trump administration did not issue a COVID-19 emergency standard and many states also narrowed their worker protections, passing “liability shield” legislation and restricting worker’s compensation coverage for employee claims. Injured on the job, plaintiffs began suing for their rights. However, while litigation brought by workers and their families, labor advocates, and unions has advanced, plaintiffs continue to struggle to overcome motions to dismiss based on preemption by either workers’ compensation, primary jurisdiction, or liability shields.
This Article is the first to use COVID-19 litigation to expose gaps in workplace safety, and the first to present a timely, evidence-based solution to address the problem: a new Emergency Temporary Standard (ETS) and workers’ compensation reform. The new ETS will provide a necessary baseline for Occupational Safety and Health Administration (OSHA) fines and citations which will, in turn, motivate companies to adopt safety practices. It will also help plaintiffs present evidence of breach of a standard in their workers’ compensation hearings and personal injury claims. Finally, this Article will fundamentally impact three simultaneous discussions: (1) an investigation by the new House Select Subcommittee on the Coronavirus Crisis on how the country’s meatpacking companies handled the pandemic; (2) the development of a new Emergency Temporary Standard to combat the spread of COVID-19; (3) litigation involving a case accusing the world’s largest meat processing company of causing a worker's COVID-19 death.
Smithfield plant employee, Jane Doe, and nonprofit Rural Community Workers Alliance, brought suit against Smithfield Foods, Inc., in April, 2020, alleging that Smithfield operated its plant in Milan, Mo., in a manner that contributed to the spread of the coronavirus.2 To the best of my knowledge, this was the first case filed against the meatpacking giant, the first use of public nuisance in a COVID-19 context, and the first lawsuit to demand an injunction to force Smithfield to comply with Centers for Disease Control and public health guidelines.3 Plaintiffs allege Smithfield did not provide workers with sufficient protective equipment, forced them to work shoulder to shoulder, gave them insufficient opportunities to wash their hands, and discouraged them from taking sick leave, among other violations.4
JBS employee, Enock Benjamin, came down with a cough and took time off from work starting March 27, 2020, and died from COVID-19 on April 3, 2020.5 Benjamin’s family brought a wrongful death suit in May against JBS, alleging that JBS ignored Occupational Safety and Health Administration (OSHA) recommendations instructing businesses to have sick workers stay at home and to issue PPE to keep workers safe on the job.6 A court denied JBS’s motion to remove the case to federal court under a primary jurisdiction doctrine theory and a state court will hear this lawsuit in 2022.7
Tyson employees, Sedika Buljic, Reberiano Garcia, and Jose Ayala Jr., all worked in Tyson’s largest meatpacking plant in Waterloo, IA, and died of COVID-19.8 Families of the deceased filed negligence and fraudulent misrepresentation claims alleging that Tyson transferred employees from another plant which had been shut down due to a COVID-19 outbreak, to the Waterloo, IA, facility, that they knew there was an outbreak in the plant, and that they allowed or encouraged sick workers to come to work.9 An amended complaint alleges that the Tyson plant management gave incorrect information to translators at the plant,10 instructing them to tell employees that “everything is fine” and that the plant had been cleared to continue – while state health officials urged them to close down.11
These summaries provide a glimpse into the lives of those who fell ill and died from contracting COVID-19 starting in April 2020, in our nation’s largest meatpacking plants. The global pandemic had started months earlier, with initial detections in Wuhan, China in December, 2019, moving to confirmed infections in the United States as early as January, 2020.12 As cases rose globally, on March 11, 2020, the World Health Organization declared a global pandemic.13 On March 13, former President Trump declared a national emergency,14 and soon thereafter the first wave of shelter-in-place and stay-at-home orders at local and state levels asked residents to stay in their homes, leading to extensive closures, cancellations, and disruptions.15
Despite the pandemic-related restrictions, those individuals deemed “essential” could continue working and states could determine which sectors and industries they considered “essential.” At the federal level, all workers who provide services that are typically essential to continue critical infrastructure operations in sixteen critical infrastructure sectors were deemed “essential” by the U.S. Cybersecurity and Infrastructure Security Agency.16 For instance, this meant that those employed in the Food and Agricultural sector—in the 2.1 million farms, 935,000 restaurants, and more than 200,000 registered food manufacturing, processing, and storage facilities in the U.S.—were considered “essential.”17 And yet, even in the Food and Agricultural sector, workers within this broad category faced different challenges. For restaurant and food service workers, the essential worker designation did not mean that these workers continued their jobs as normal; on the other extreme, for those on the production side of the food system who continued working to feed our country, work came at a grave human cost.18
One month after the emergency declaration, meatpacking plants had already become epicenters of disease spread. By April 2020, COVID-19 cases among 115 meat or poultry processing facilities in 19 states were reported to the U.S. Centers for Disease Control and Prevention (CDC) and details exposed several vulnerabilities in meatpacking plants, many inherent in the facilities and work itself.19 Meatpacking is “the business of killing animals for meat and getting the meat ready to be sold,”20 which includes specific tasks of slaughtering, processing, packaging, and distributing of cattle, hogs, and broilers into beef, pork, and chicken.21 Meatpacking is a highly consolidated industry and the big four meatpackers produce 85% of meat sold in the United States.22 This Article focuses on the COVID-19 policies, practices, and violations of the three largest meatpackers in the United States: JBS, Smithfield, and Tyson. In the United States, JBS operates 60 plants with 85,000 employees, Smithfield, operates 59 plants in with 54,000 employees, and Tyson, operates 110 plants with 121,000 employees.23 These companies are diversified with Tyson and JBS processing beef, pork and poultry, and Smithfield focusing on pork.24
Meatpacking is also labor-intensive. The economics of meatpacking are such that large plants must operate at low costs to produce as much meat as possible.25 A packing plant requires a large refrigerated building, the cost of which needs to be spread over as many pounds of production as possible and when U.S. Department of Agriculture (USDA) inspectors are required, with labs and tests to run, and workers to pay, there is a strong incentive to ensure that a plant can accomplish as much production as possible in as little time as possible.26 All plants, regardless of size, aim to control costs, which means that there is no extra production capacity.
The nearly 500,000 people employed in meat and poultry processing are considered to be at increased risk for infectious disease transmission, including respiratory illness outbreaks.27 One reason for this is that it is difficult to maintain 6-feet of distance while working, since employees work in proximity to other workers especially on production lines, during breaks, and while entering and exiting facilities.28 Additionally, the physical exertion involved in processing work often makes it difficult for workers to maintain facial coverings.29 Also, meatpacking workers perform monotonous and physically demanding work, in cold, re-circulated air30 and are already susceptible to sickness, absence, and reduced work ability31 due to occupational health hazards like musculoskeletal disorders, skin disorders, hearing disorders, and infectious diseases.32 The injury rates among foreign-born workers in the United States are significantly higher than non-foreign born workers.33 With Latino workers in particular, there is a high workplace injury rate and under-reporting of workplace injuries.34
The U.S. meatpacking industry has long relied upon a vulnerable population of ethnic minorities, immigrants, refugees, and undocumented laborers to fill its workforce. This helps to explain why a reported 90% of COVID-19 cases are attributed to ethnic minorities in the meatpacking industry.35 Migration of Hispanic workers to rural parts of the U.S. was largely caused by the move of the meat processing industry.36 Lack of cohesive language and community keep these employees at a disadvantage making it hard to fight for increased protections.37 At the Tyson plant in Sioux Falls, SD, there are 40 different primary languages spoken.38 The working conditions of these plants have subsequently deteriorated as de-unionization and deskilling has increased.39 Today, union membership is not pervasive and only half of the employees are unionized at the JBS, Smithfield, and Tyson plants.
From April to June 2020, more than 80 meatpacking plants had confirmed COVID-19 outbreaks, and in some plants, large outbreaks infected 30% to 70% of the meatpacking workforce.40 The Smithfield plant in Sioux Falls, SD, which handles 5% of U.S. pork production, recorded the largest national outbreak on April 13, with 783 workers testing positive for the virus and two deaths.41 The plant closed the next day.42 At that time, Tyson had already closed facilities in Logansport, IN, and Waterloo, IA, and JBS had closed a facility in Worthington, MN, due to outbreaks.43 Due to consolidation, a closure in one plant can have a sizable impact on the entire industry. For instance, when the Waterloo, IA, Worthington, MN, and Sioux Falls, SD, facilities closed due to COIVD-19 outbreaks, the closures resulted in a 15% reduction in America’s pork production.44
Meatpacking plants struggled to retain workers and maintain workplace safety in their operations. Almost half of the plants with outbreaks closed for some time, with most facilities closing for over one week.45 Plants that did not close or that reopened after a temporary closure typically slowed production due to the need for social distancing and other precautionary measures.46 The JBS plant in Greeley, CO, had to close its plant for a two-week cleanse. The United Food and Commercial Workers Union (UFCW) President alleged that JBS Greeley pulled workers from halfway houses in the community to keep the plant running.47 Some employers offered financial rewards for showing up during a pandemic, offering a “responsibility bonus” of $500 to employees who did not miss time (e.g., were not late or sick) during the month of April.48 The Nebraska governor directed departments not to release COVID-19 case statistics at meat plants in an effort to de-emphasize COVID-19 cases to protect privacy interests but meatpacking workers argue that they need to know if their workplaces are safe.49
As plants closed, Tyson ran a full-page ad on April 26, 2020, that the closure of food-processing plants due to COVID-19 is “breaking” the supply chain, adding that farmers will be left without markets for their livestock and "millions of animals—chickens, pigs and cattle—will be depopulated.”50 Two days later, former President Trump issued an Executive Order designating meat packing plants as critical infrastructure and compelling them to remain open.51 From April 2020 to August 2021, there were 50,000 COVID-19 cases attributed to meatpacking facilities.52
Lawsuits emerged in response to the numbers of meatpacking employees infected during the pandemic. With over 50,000 infections and 250 deaths since the start of the pandemic, meatpacking employees and their families brought negligence, public nuisance, fraudulent representation, and wrongful death claims against the big three meatpacking companies.53 To date, lawsuits in the U.S. are in tort; in Canada, however, there has been one meatpacking suit brought in criminal negligence.54 The first case—filed in April 23, 2020, against Smithfield—was brought by a nonprofit organization representing a meatpacking worker.55 Since then, other suits seeking injunctive relief have been filed by unions and non-profits against the Department of Labor’s OSHA, in an attempt to force meatpacking plants to implement safety measures to prevent the spread of COVID-19.56 Other suits, including a shareholder suit, emerged, signaling systemic corporate and regulatory failure. The shareholder suit claims that Tyson failed to protect its meat plant workers from COVID-19, leading to meat plant shutdowns and lower production, and that they withheld this information from investors.57 The normal pace of litigation has been slowed by the pandemic; there is a backlog of cases with few going to trial, in part because lawyers who would have been motivated to settle cases before a trial have less motivation to do so now.58
Lawsuits allege that meatpacking companies failed to take necessary measures to prevent COVID-19 spread; social distancing and mask-wearing were not being enforced, managers were pressuring sick employees to work, and employers were not notifying employees about co-workers’ infections.59 Lawsuits also point to regulatory failures. Plaintiffs blame the former Trump administration for not issuing a COVID-19 emergency standard, relying instead on an existing general duty clause of the OSHA Act to enable proper enforcement, and a set of recommendations for companies to voluntarily follow the guidelines of the CDC.60 OSHA regulators, in turn, were criticized for applying lax oversight and negligible penalties–comparatively lower to those issued to health care facilities–despite widespread virus outbreaks at meatpacking plants.61 After announcing penalties totaling over $1 million to dozens of health care facilities and nursing homes, OSHA fined two meatpacking plants less than $30,000, even as the virus infected over 1,500 at the two facilities in question.62 OSHA was also criticized for arriving late to the scene when, according to the National Beef slaughterhouse in Dodge City, three workers had died by the time OSHA arrived in mid-May.63 While these accounts were taken during the pandemic, they are characteristic of an industry that has, historically, suppressed workers’ wages and rights by misclassifying them as independent contractors which deprives employees of essential rights such as overtime pay, medical leave, and the right to unionize.64
This Article uses lessons learned from the ongoing litigation, along with state best practices, to present two reforms for immediate adoption: (1) adopt a federal OSHA Emergency Temporary Standard (ETS) to guide inspections and citations, and (2) reform worker compensation programs to provide meatpacking employees with benefits for COVID-19 workplace exposure. Workplace safety mechanisms are failing to protect workers. As meatpacking companies operate for profit, the litigation highlights that companies are not adopting the necessary precautionary measures. COIVD-19 safety precautions are only voluntary and meatpacking firms have no economic incentive to increase workplace safety. Moreover, the slow pace of pandemic litigation, coupled with state-adopted liability shields and reductions in worker compensation benefits, enable corporate deniability. The recommended reforms would alter federal and state rules for workplace safety to make companies internalize the social cost of workplace safety. Only when companies incur additional costs—like penalties for OSHA non-compliance with a new ETS, or worker compensation payouts for employees who contract COVID-19 on the job—will they adopt necessary workplace safety precautions.
This Article contributes to the literature on COVID-19, and literatures in Business Law, Food and Agricultural Law, and Tort Law.65 The literature has not adequately discussed the toll of meatpacking work and OSHA reform. OSHA reform, workers’ compensation, and expanded tort doctrine can help prevent workplace injuries and/or adequately compensate employees fairly for them.66 The Article is organized as follows. Part I outlines workplace safety governance and describes measures protecting workers during the pandemic, namely the rules regulating workplace safety. Part II describes measures protecting meatpacking plants during a pandemic, from executive orders to state liability shields. Part III presents the litigation, the cases brought by plaintiffs, and the defenses’ key arguments. Part IV presents the solution to a broken regulatory system: an ETS modeled after the Virginia state OSHA program, and stronger workers’ compensation laws. This final section also describes the impact of a new ETS on litigation going forward.
During the pandemic, OSHA and the CDC provided voluntary guidance to all businesses in the United States.67 Providing employees with a safe workplace may be an impossible objective to satisfy completely in a pandemic, particularly in those workplaces where employees or customers must congregate. Primarily for this reason, governments identified businesses they deemed essential; for example, in the state of Colorado, meatpacking plants, as food processors, were exempted from the stay-at-home order while hair salons had to abide by the stay-at-home order.68 Industry also plays a role in promoting workplace safety. Most employers act in good faith to protect their employees in accordance with the law and applicable governmental guidance; but some do not. Some employees may be hyper-sensitive to the workplace risks during the pandemic and may never be satisfied with their working conditions. Other employees may have well-grounded fears of their working conditions. In all cases, when frustrated with the precautions taken by their employers, or lack thereof, employees in both categories have a variety of options: filing internal grievances with their employers and/or unions, filing complaints with state and federal agencies, and filing lawsuits in state or federal court. The last resort is quitting their jobs (and, possibly, collecting unemployment). When available, these options all represent pressure points for industry to maintain workplace safety.
Employers must comply with all applicable OSHA standards and with the General Duty Clause of the Occupational Safety and Health (OSH) Act of 1970.73 Four OSHA industry standards exist: general industry, construction, maritime, and agriculture standards.74 The general standards apply to all employments covered by OSHA, including those with specific standards if those standards do not offer the same protections.75 Since the meat processing industry is not covered under a specific standard, the general standards apply.76
Employers must also comply with the General Duty Clause, stating that each employer must provide their employees with a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”77 The General Duty Clause was the same section OSHA relied upon during the historic Swine Flu, Zika, and Ebola outbreaks.78
There is no private right of action under the OSH Act that enables a worker to sue their employer for violating or being cited under a safety statute; however, employees can ask OSHA to inspect and issue a citation.79 A violation of the General Duty Clause will be issued when four elements are met: (1) the employer failed to keep the workplace free from a hazard that employees were exposed to; (2) the hazard was recognized; (3) the hazard was causing or was likely to cause death or serious physical harm; and (4) there was a feasible and useful method to correct the hazard.80 To meet the first element, one cannot cite the failure to implement safety precautions but can instead cite the failure to remove or prevent certain hazards. For example, a citation given for a hazard such as a potential fire due to sparks, could not be given for the lack of ventilation that could abate that hazard.81
During the pandemic, the former Trump administration was criticized for not issuing an ETS, instead relying on the general OSHA rules.82 A loose application of the above rules could find that the big three meatpackers violated the General Duty Clause. In the COVID-19 context, and specifically for meatpacking plants, the first element is established by the existence of a hazard that the employer failed to keep out of the workplace. If the hazard is defined as person-to-person transmission, then, based on the current evidence of extensive spread throughout meatpacking plants, it would seem that this element is fulfilled.83 Providing masks and spacing employees could be classified as either an “abatement” or as “prevention and removal of the hazard of spread.”84 The second element asks for a recognized hazard. This can be proven by looking at employers’ actual knowledge and recognition of the hazard through written or oral statements made by the employer or management.85 The second element is easily fulfilled as many employers actively acknowledged the risks associated with continuing to work through company memoranda.86 The third element asks for a showing that the hazard was causing or was likely to cause death or serious physical harm. If a recognized hazard has caused an actual death or serious injury, then the third element is fulfilled. As there were dozens of deaths allegedly caused by the spread of COVID-19 within these facilities, this element would easily be met.87 The last element is that the agency must identify existing measures that would correct the hazard. If the proposed abatement method would cause a significant reduction of the hazard compared to what the employer has done, then a citation can be issued under § 5(a)(1) of the General Duty Clause.88
This last element is perhaps the most challenging to prove. Retroactively, it would seem clear that the companies failed to put in place many measures that would have corrected the hazard, such as spacing workers on the processing line and requiring them to wear masks. This would have largely eliminated the hazard of person-to-person spread. However, OSHA notes that once the employers have implemented safety measures, there is nothing for an inspector to cite.89 For example, in the Tyson Waterloo Plant investigation, a finding of no violations shocked some Iowa politicians who later asked the regional OSHA office to conduct a second site visit.90
Aside from a call for an OSHA inspection in the case of a failure to uphold the general duty of employers set forth in §5(a)(1),91 the OSHA Workers’ Rights manual92 provides that employees can file a complaint and ask for an OSHA inspection if they believe there is a significant hazard or if the employer is not following a rule or standard.93 Since the Trump administration did not issue an ETS, it may be difficult for employees to point to a rule or standard in the current context of the pandemic, where federal agencies, principally the Departments of Health and Human Services (through the CDC) and Labor (through OSHA), issued evolving voluntary guidance for plants to implement, to help ensure employee safety during the pandemic.94 Since these were voluntary recommendations, employees may not be able to call for an OSHA inspection based on employer’s failure to uphold those recommendations. However, if they can prove they pose a significant hazard, they may be able to claim a failure to uphold the general duty of employers, set forth in the § 5(a)(1) General Duty requirement.95
There is evidence that OSHA is not meeting their own standard to protect workers.96 Meatpacking is one of the most dangerous jobs and OSHA is not adequately investigating complaints or punishing violations.97 Lack of funding, political will, and inefficient management all likely play a role in this.98 Currently each inspector is responsible for about 60,000 workers, making it nearly impossible to adequately inspect all working conditions.99 For example, Daniel Avila Loma, who worked at the JBS plant in Greeley, CO, became ill at work and died of COVID-19 two weeks later, on April 29, 2020.100 Five months later, in September, after several employees who worked at the plant died of COVID-19, OSHA cited the Greeley plant for failing to provide a safe workplace.101 After receiving the citation from OSHA, in November 2020, JBS removed 202 workers at the plant whom it considered vulnerable to COVID-19, due to age and other factors, and paid them full wages and benefits during their time away from work.102 It took OSHA five months to cite the Greeley plant.103
During the pandemic, state workers’ compensation systems were criticized for denying claims from workers who suffered COVID-19 symptoms on the job.108 Workers filed hundreds of thousands of virus-related claims in 2020, but most have been denied.109 It should be noted that these numbers underestimate those who would have filed. The documentation status of many workers in the meat packing industry is a large contributor to the lack of safety mechanisms, and to lower workers’ compensation claims or injury reporting.110 Insurance carriers denied claims, arguing that workers contracted COVID-19 outside work hours; meanwhile, attorneys representing workers argued their client’s COVID-19 cases were directly linked with unsafe job environments.111 Since workers’ compensation claims typically involve injuries and accidents that happen on the job, generally, an illness can only be covered if it is specific to a profession—for instance, certain respiratory illnesses for firefighters—and not, say, a case of the flu acquired from a sick co-worker.112 There is still legal ambiguity over whether COVID-19 qualifies as an “occupational disease” arising directly out of some work environments.113
The concern that employees could not be compensated by the workers’ compensation system led a half-dozen states to amend their worker’s compensation programs starting in March 2020, to have presumed coverage for health care workers, first responders and other essential workers who contract or are exposed to COVID-19.114 Normally, workers have the burden to prove they were hurt or infected on the job, but these amendments allow access to worker’s compensation coverage without requiring workers to prove infections occurred on the job.115 To deny coverage, the insurance carrier has the burden to prove that the employee was infected outside of work.116
While no comprehensive national data exists on the number of COVID-19-related claims, payouts, and denials and acceptances, several states have released data on workers’ compensation payouts. The available data suggests that carriers are denying a significant percentage of claims related to COVID-19, even in states with the so-called presumptive-eligibility rules.117 In Texas, where no presumption of eligibility for COVID-19 exists, the total number of reported worker compensation claims in 2020 was 24% higher than in 2019 and of the more than 32,000 claims related to COVID-19 that were filed through December 2020, insurers denied 45% of those in which workers produced a positive COVID-19 test, according to the state’s Department of Insurance.118 Insurers denied 38% of those in which workers produced a positive COVID-19 test, according to the state’s Department of Insurance.119 Meanwhile in California, which has a broad presumption law for certain lines of work, workers filed 93,470 claims related to COVID-19 through the end of December; 26% were denied.120 In Florida, which received 29,400 workers’ compensation claims related to COVID-19 by the end of December, front-line workers who are state employees were given a presumption of eligibility. Public data shows state and local employees’ claims were accepted at far higher rates—with only 22% denied—than claims from another pool of workers in the state that consists primarily of private-sector employees—in which roughly 56% of the cases were denied.121 Of the claims paid in Florida through December 2020, less than 2% of those cost carriers more than $10,000.122
Workers’ compensation rules are supposed to be the exclusive remedy, so the bar for litigation is high. Typically, employees covered by workers’ compensation are precluded from suing their employer, but where there is potential evidence of gross negligence, or wanton and willful misconduct on the part of the employer, a worker or their family could take an employer to court. In court, employee claims may be strengthened by OSHA citations, or a recorded violation of an ETS.
Unions and non-profits have also represented clients in COVID-19 exposure litigation, providing an argument for a continued and growing unionization while also working for new labor protections.130
The Executive Order reads, “[i]t is important that processors of beef, pork, and poultry (‘meat and poultry’) in the food supply chain continue operating and fulfilling orders to ensure a continued supply of protein for Americans.”135 The Executive Order goes on to say that, “[s]uch closures threaten the continued functioning of the national meat and poultry supply chain, undermining critical infrastructure during the national emergency.”136 Importantly, the Executive Order delegates the Secretary of Agriculture to “take all appropriate action under that section to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA.”137 Authority is also given “to require performance of contracts or orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense.”138 Furthermore, it delegates the Secretary of Agriculture “to determine the proper nationwide priorities and allocation of all the materials, services, and facilities necessary to ensure the continued supply of meat and poultry, consistent with the guidance for the operations of meat and poultry processing facilities jointly issued by the CDC and OSHA.”139
Before the pandemic was declared on March 11, 2020, JBS, Smithfield, and Tyson had already obligated their production due to signed trade agreements and private contracts. In January 2020, the “phase one” deal was agreed upon between the U.S. and China.142 This deal, in part, opened up the Chinese beef market and was predicted to lead to China becoming one of the top three importers of American beef.143 JBS signed two deals which committed meatpacking plants to exporting its products. JBS entered a deal with China-based Alibaba worth $1.5 billion in November 2019144 and also agreed to supply WH Group, a Hong Kong-based meat processor with extensive connections throughout China, worth around $687 million a year beginning in 2020.145
Even before the pandemic, pork producers had been warning of potential shortages facing rising global demand146 coming from China.147 Starting in 2018, China began to lose its hog herds to African Swine Fever, resulting in lower production.148 China has responded by increasing imports and loosening restrictions on pork (in 2018), poultry (in 2019), and beef (in 2020).149 The highest export month on record for U.S. pork products was December 2019 with 102,177 tons, followed by a total of 280,507 tons in the first three months of 2020—a 300% increase compared to the same period last year.150
Obligations required that—despite illnesses and deaths and closures and re-openings at meatpacking plants—meatpacking companies continued to produce. According to the USDA, pork exports to China in April 2020, were the highest since the USDA began tracking the statistic over 20 years ago, up 22% compared to last April, 2019.151 Pork producers typically send between 25-27% of the pork overseas, but this jumped to 32% in the first four months of 2020 as a result of increased demand from China.152 Among the big three meatpackers, Tyson reported the greatest export growth.153 While Smithfield’s exports to China increased 135% year to year, JBS and Tyson increased exports significantly more, 878% and 1,771% respectively.154
These increases were controversial.155 These businesses simultaneously espoused the need for workers to continue to come into dangerous processing facilities to protect the U.S.’s food supply, all while exporting record amounts of food.156 According to the USDA, since mid-March 2020, the frozen pork supplies in the U.S. dropped 25% while exports to China more than increased by 135%.157 The President of the National Pork Producers Council made it very clear that this was indeed largely out of economic concerns, stating that pork producers need to keep their customers abroad, otherwise they may lose them forever.158
Critics of the federal liability shield proposal, and liability shields generally, argue that the wave of litigation may never materialize.167 They claimed, of the 3,500 COVID-19 related lawsuits being tracked, fewer than 100 claimed personal injury, unsafe working conditions, or wrongful death.168 Moreover, using a narrower case tracker focusing solely on employment litigation regarding COVID-19, out of a total of 327 cases, only 26 cited an unsafe workplace and 10 cited negligence or wrongful death.169 Interestingly, criticism of liability shields can also be found in some states with liability shields in place. In Idaho, for example, six months after the first reported COVID-19 case, with over 30,000 confirmed cases in the state, not a single COVID-19 exposure tort suit had been filed.170
Beyond efficacy debates, questions remain surrounding the implementation of a federal immunity bill. Since the proposed bill would create an exclusive federal cause of action, less strict state liability shield laws would be preempted.171 Concern exists over federal law usurping state power, specifically with regard to tort claims that have generally resided in the states purview.172 Further, if the federal liability shield uses the same standard used by states (gross negligence), the argument is that further complications will arise due to the fact that tort law is covered under state law, not federal law, and each state’s definition for gross negligence varies by state common law.173
As of June 15, 2021, thirty states have passed some form of COVID-19 liability shield laws.174 These states cover over half of the U.S. population and typically have Republican-controlled legislatures.175 The laws vary from state to state, but all those discussed below have broad coverage for all businesses.
The vast majority of states have limited liability for all businesses unless they act with gross negligence or recklessness.176 The standard for both of these terms is functionally the same. The standard is described as an act that demonstrates such reckless disregard for others safety that it appears as a conscious choice to violate the rights of others.177 Generally, bills require those who were infected or exposed to prove gross negligence or a similar level of disregard for the health and safety standards, making it quite hard to effectively file a lawsuit.178
A small minority of the states that have COVID-19 liability shields have opted to require proof of actual malice or intentional exposure in order for plaintiffs to recover.179 This is a much higher standard than gross negligence, and therefore more difficult for plaintiffs to meet. In order to hold a business liable under this standard, plaintiffs must show that a business acted deliberately with the conscious objective of engaging in conduct that exposes someone to COVID-19.180 Finally, some states choose to use public health standards as the basis for liability.181 In these states, businesses are shielded from liability so long as they are in substantial compliance with the applicable health laws and directives. However, each state has a slightly different definition of which health laws are applicable. Michigan includes all federal, state, and local rules and regulations; while Nebraska only requires following federal health guidance.182
Unlike Michigan and Nevada, Texas does not fall neatly into any legal category for liability. In order for a business to be liable the Texas law requires that a business knowingly fail to warn of a condition that makes it more likely than not that a person will be exposed to the COVID-19 or if they fail to comply with applicable government standards and guidance.183 Either way, the plaintiff must also provide scientific evidence showing that failure to warn or implement standards was the cause in fact of contracting COVID-19.
To summarize, the litigation is ongoing, and most cases have been removed to federal court and are pending decisions. The plaintiffs in the cases presented below are meatpacking workers themselves and their families and/or nonprofits and unions. Some cases are brought by meatpacking plant shareholders. The focus of this Article is on cases brought against JBS, Smithfield, Tyson, and federal regulators (USDA and OSHA), but other cases (such as one brought against fast food giant, McDonald’s) will be discussed as they contribute to the litigation. Table 1, below, tracks the individual lawsuits filed and the overall pace of litigation since the start of the pandemic. It lists the cases by defendant and cause of action. From this presentation of the data, the big outbreaks in the meatpacking plants in April 2020, prompted the lawsuits filed in April and May through the month of August 2020. At the time of writing this article in early 2021, the most recent development is the federal order removing a case from federal court to state court for trial in 2021.185
Table 1: COVID-19 Meatpacking Plant Litigation by Company and Cause of Action 186
Of note, recent developments in litigation against JBS and Tyson are perceived jurisdictional victories for plaintiffs. First, in February 2021, a Pennsylvania federal judge remanded a case accusing JBS of causing a worker's COVID-19 death, stating that a violation of federal health guidelines is not enough to keep a suit in federal court.188 The wrongful death case was originally brought in state court by the family of deceased JBS employee, Enock Benjamin, who came down with COVID-19 at work and died from COVID-19 two weeks later, in April 2020.189 The case alleges that JBS ignored OSHA recommendations for businesses to have sick workers stay at home and to issue personal protective equipment to keep workers safe on the job. A state court will hear the case in 2022. In the fall of 2021, the Eighth Circuit Court of Appeals will hear two cases implicating Tyson, the outcome of which will determine whether wrongful death litigation can advance at the state level.
Of the cases against JBS, Benjamin v. JBS S.A., has received attention for being successful in its attempt to bring claims in state versus federal court. The suit, Benjamin v. JBS S.A., filed in May 2020, claims that JBS failed to follow the CDC and OSHA guidelines and promoted a culture that discouraged workers from taking sick leave.193 JBS employee Enock Benjamin came down with a cough and took time off from work starting March 27, and died on April 3, 2020.194 The suit, brought by Benjamin’s estate, alleges “negligence, fraudulent misrepresentation regarding the safety of working conditions at the plant, and wrongful death.”195 In an attempt to remove the case to federal court, JBS argues that JBS Souderton Inc., the local plant in which Benjamin worked, could not be named in the suit because such a suit would be preempted by workers compensation law and therefore only the national JBS could be named.196 Benjamin’s estate argues that since JBS Souderton misrepresented the safety of the workplace, the claim falls under an exception and therefore the case should remain in state court.197 After months of pleadings and motions in the Eastern District Court of Pennsylvania, the case was remanded to state court.198 This case is ongoing and perceived as a small victory for the plaintiff’s bar in that it will be tried at the state level which is presumably more favorable to plaintiffs.199
The second case against JBS was dismissed early; however, it presents novel defenses worth noting—not workers’ compensation preemption as seen in Benjamin, but rather primary jurisdiction and “the President made us do it”—to be discussed later. JBS employee, Maria Hernandez, 63, was a 30-year employee at Pilgrim’s Pride Corporation (a JBS subsidiary) when she died of COVID-19 on May 8, 2020.200 Her family brought a wrongful death suit in Requena v. Pilgrim’s Pride Corporation, claiming that Hernandez was “instructed to report to work” and switched to the Shipping and Labeling Department, noted for being a “hot spot” with a higher number of cases relative to other areas of the plant, and short-staffed due to COVID-19 illness, employees being tested, or absenteeism.201 Her sons claim that the switch was made without informing her, or other employees, that the other workers were out sick with COVID-19 and without taking into account the higher risk posed to Ms. Hernandez as she was over 60 years of age.202 One week following her switch to the Shipping and Labeling Department, Ms. Hernandez fell sick and died shortly thereafter.203 Pilgrim’s denied wrongdoing, filed a notice of removal to federal court, and invoked a novel legal argument that the former President Trump made them do it.204 “Any duty ascribed to Pilgrim’s unavoidably implicates President Trump’s explicit directive regarding the safe operation of meat processing facilities during the pandemic,” the company’s attorney claimed.205 JBS filed a motion to dismiss asserting OSHA has primary jurisdiction.206 In contrast, a similar suit in Texas brought against a smaller meat processer, is going to trial. In Blanca Esther Parra v. Quality Sausage Co., negligence and wrongful death claims are brought by the family of Quality Sausage Company plant worker, Hugo Dominguez, who died from COVID-19, alleging that: (1) the plaintiff worker was exposed at work and was told to report for work even after displaying symptoms of COVID-19; (2) management failed to provide PPE or training on reducing the risk of infection;207 and (3) it was clear by April 8, 2020, that employees at the plant were becoming sick, but the defendant did not close the plant for reevaluation of policies and cleaning until after April 24, 2020.208 This case is scheduled for trial in March 2022.209 Why was this suit scheduled for trial and the Hernandez suit dismissed? The defendant (a smaller meat processer, Quality Sausage, versus larger, processor Pilgrims Pride/JBS) may have played a role.
Next, Tyson was implicated in two suits alleging workplace safety. The first case involves a poultry processing plant in Texas and is the first COVID-19 exposure lawsuit seeking punitive damages.210 The outcome shows the difficulty plaintiffs face in overcoming the causation element. Tyson poultry plant employee, Jose Angel Chavez, worked at the Shelby County, TX, poultry plant for more than 20 years, and died on April 17, 2020, from complications caused by COVID-19.211 In Chavez v. Tyson Foods, Inc., the Chavez family brought negligence and wrongful death claims against Tyson alleging that the company disregarded safety protocols by failing to provide protective gear or inform employees when others were infected and are seeking punitive damages due to the extreme risk posed by a mass outbreak.212 Knowing the risks, plaintiffs allege, Tyson proceeded with conscious indifference to the rights, welfare and safety of others.213 In its motion to dismiss filed on July 30, 2020, Tyson Foods Inc. told a U.S. District Court judge that the Chavez family failed to rule out other possible causes of the infection.214 Before a ruling on this motion, the family dropped their suit stating they plan to file a stronger version of the case in the future.215
In the litigation against Tyson, two cases—Buljic v. Tyson Foods, Inc (Buljic), and Fernandez v. Tyson Foods, Inc. (Fernandez)—have received notable attention. They both stem from outbreaks at the same Waterloo, IA, Tyson plant, both face similar jurisdiction challenges, and both have received support from nineteen Attorneys General.
In Buljic, plaintiffs are the representatives of three employees working in Tyson’s largest meatpacking plant in Waterloo, IA, who died from contracting COVID-19 at work: Sedika Buljic, age 58, died on April 18, 2020; Reberiano Garcia, age 60, died on April 23, 2020; and Jose Ayala, Jr., age 44, died on May 25, 2020.216 The Waterloo plant is Tyson's largest pork facility and can process 20,000 hogs per day.217 Since the combination of Tyson’s Waterloo, IA, plant, and Smithfield’s Worthington, IA, and Sioux Falls, SD, plants account for roughly 15% of pork production in the U.S.,218 COVID-19 outbreaks in these facilities naturally cause a decrease in national pork sales. Alleging violations of workplace safety, plaintiffs claim: (1) Tyson transferred employees from the Columbus Junction plant, which had been shut down due to a COVID-19 outbreak, to the Waterloo Facility; and (2) Tyson knew there was an outbreak in the Waterloo plant and allowed or encouraged sick workers to come to work.219 Tyson officials denied the outbreak even after over 20 employees were admitted to the emergency room and local officials called for the plant’s closure.220 The plaintiffs state that Tyson lied in order to keep employees on the job, risking their lives.221 An amended complaint alleges that the Tyson plant management incorrectly informed translators to tell the employees that “everything is fine” and that the plant had been cleared to continue—while state health officials urged them to close down.222 Finally, an amended complaint alleges that managers created a betting pool based on the percentage of employees who would contract the virus.223
The case of Fernandez is factually similar to Buljic. Oscar Fernandez was another Tyson employee exposed to the COVID-19 at the Waterloo, IA, meatpacking facility where he worked, and died a few weeks later in April 2020 from complications of COVID-19.224 Fernandez’s survivors filed a suit in Iowa state court against Tyson, claiming that it violated Iowa tort law.
Tyson removed both Buljic and Fernandez from state court to the federal court using two theories: (1) that Tyson was acting “at the direction of a federal officer and (2) that the Federal Meat Inspection Act preempted the workers’ claims based on state workplace safety rules.”225 In December 2020, the district court granted the plaintiff’s Motions to Remand and sent the cases back to state court. Importantly, the court held that Tyson was not acting as a “federal officer” in operating its meatpacking plants. It also held that neither the Federal Meat Inspection Act nor the Defense Production Act preempted plaintiffs’ state law claims.226 The defendants have appealed the decision to the Court of Appeals for the Eighth Circuit.227 The Buljic and Fernandez cases have been consolidated for consideration as they allege similar facts and are pending a jurisdictional ruling in the Eighth Circuit.228 Due to this, the defendants moved for a Joint Motion to Stay Proceedings with the Northern District of Iowa and it was granted on February 9, 2021.229
Where does the consolidated case rightfully belong? The Iowa District Court, nineteen Attorneys General, and federal officers agree that the case implicates state, not federal, issues. Tyson claims this case should be heard in federal court based on the Federal Officer Removal Statute.230 It claims that under this law a company acting at the direction of a federal officer will be granted a federal court forum to hear any claims arising from that direction. The District Court will have to determine, (1) whether former President Trump had the authority to make these private actors, Tyson in this case, into government actors who therefore acquired government actor immunity,231 and (2) whether the Trump administration exercised that authority properly.232
The district court deemed that Tyson could not rely on former President Trump’s order because its actions occurred before he issued the April Executive Order.233 However, a formal order is not necessary and a defendant can act under informal orders, and often times does until the formal order is issued.234 While the Federal Office Removal Statute issue has not been decided in this context, there is some relevant precedent in a Supreme Court case from 2008, Watson v. Philip Morris, in which the Supreme Court determined that a company must assert more than mere compliance with an order, but instead prove it acted under direction of a federal officer.235
In response, nineteen Attorneys General have stepped in and filed a brief urging the Eighth Circuit to reject federal jurisdiction and remand to state court.236 They claim this is a vast overstep of the Federal Officer Removal Statute and this case should rightfully be heard in state court, where the violations occurred and that the Removal Statute is meant to protect federal agents from hostile state courts, not private entities that operate in those states. The nineteen Attorneys General stated in their amicus brief that “allowing the case to proceed in federal court would undermine states’ ability to enforce their own laws and allow nearly any company to pull state law claims against it into federal court by arguing that it was working under federal guidance.”237
The federal government has also stepped in, filing an amicus brief in favor of remanding the case back to state court, stating that Tyson had not been acting under its direction and was instead, simply conducting business as usual.238 This move further damages Tyson’s claim that they were working under federal order. However, Tyson has made clear in their brief that while the Biden administration may disagree now, they are an inaccurate proxy for the views of the federal officials who issued the order that Tyson relied upon.239 There is fear that if Tyson is denied federal immunity, it may have consequences for future emergencies when the meatpacking industry may be asked again to continue production.240
This case has been approved for oral arguments in front of the Eighth Circuit to determine whether it should be in the federal or state court system in the fall of 2021.241
Public nuisance cases solely ask for stricter safety measures in the workplace. In Rural Cmty. Worker’s All. v. Smithfield Foods, Inc. (Rural Cmty. Workers), “[p]laintiffs are not seeking monetary damages, only declaratory judgments stating that: (1) Smithfield’s practices at the plant constitute a public nuisance; and (2) Smithfield has breached its duty to provide a safe workplace.”244 Specifically, the lawsuit claimed that the lack of PPE and appropriate distancing of workers, the company’s culture toward sick leave, and the lack of a plan for contact tracing are problematic and need to be changed.245 The lawsuit claims that Smithfield failed to satisfy even minimum public health guidelines. For example, it was not until April 16, 2020, that any worker at the plant reported receiving a mask.246 As of April 20, 2020, most workers were getting just one simple surgical mask from Smithfield every week and could get a new one only if the first one broke, according to the suit. It also alleges that, in an effort to process as much meat as possible “as cheaply as possible,” workers were forced to stand so closely together “that they are literally touching.”247 The suit was dismissed after a federal judge determined that, given that OSHA issued guidance after the lawsuit was filed and the executive order mandated meatpacking plants continue operating, OSHA and the USDA have more authority over the case under the primary jurisdiction doctrine.248 However, as noted, this case set several precedents and is often cited.
Interestingly, outside the meatpacking context, two suits filed against different McDonald's franchises—one against four fast food restaurants in Chicago, IL,249 and the other in Alameda County, CA,250—were not dismissed under the primary jurisdiction doctrine. These public nuisance cases are one example of how workers can get safety measures instituted. One of the first to test public nuisance claims under the novel coronavirus context, the first suit was filed in Illinois Circuit Court by ‘Fight for $15’251 on behalf of 5 employees, and their family members, at multiple McDonald’s locations.252 Instead of barring the suits outright based on the exclusive remedy rule of workers compensation law or primary jurisdiction,253 the judge initially ruled that public nuisance fell under the state court’s purview.254 She has since partially granted the employees preliminary injunction stating that McDonald’s has done some things right but they need to fix certain “serious failures.”255 The other public nuisance suit filed against McDonald’s sought a temporary restraining order to force an Oakland McDonald’s to close and comply with the minimum safety measures including the paid sick leave laws in place in Oakland.256 The suit claims that the owner and managers did not notify employees of virus exposure and failed to implement social distancing or cleaning practices.257 In June 2020, a state judge issued a temporary restraining order forcing the Oakland franchise to remain closed for a month unless the local health department approved an earlier reopening.258 If they failed to implement the necessary safety measures, the judge was to rule on a preliminary injunction.259
Drawing comparisons, why did the injunction succeed for the plaintiffs in McDonald’s and not for the plaintiffs in Rural Cmty. Workers? Differences between the Rural Cmty. Workers and McDonald’s decisions can be justified by industry differences, differences in the number of employees affected (the Smithfield’s plant employs thousands while the McDonald’s employed only a few dozen) and differences among the plaintiffs themselves. Since both McDonald’s lawsuits included plaintiff non-employees who had been infected by McDonald’s employees, the nonemployee plaintiffs may have been influential in keeping the case outside of the OSHA jurisdiction.
In dismissing this suit in May 2020, Judge Kays stated that OSHA had primary jurisdiction and that there was no imminent harm in June 2020. Public Justice, one of the plaintiffs in Rural Cmty. Workers, sought to reopen the case, arguing that there was ample and recent proof of spread within the facility and imminent harm.260 In July 2020, this motion was denied.261
A CDC study of 21 states reported on July 7, 2020, that 87% of all infections in the meatpacking industry involved minority workers.267 Hispanic workers make up about 56% of those infections despite being only about one third of the workforce.268 To win a racial discrimination claim under Title VI of the Civil Rights Act of 1964,269 a party has a high burden of proving that rules are being applied unevenly or that non-minority workers are given better protections.270 It is not a violation of Title VI for different job functions to have varying levels of protections; thus, if minority managers were being treated differently than white managers, or if an employer actively sends minority applicants to different jobs than white applicants, there may be a disparate treatment claim.271 Often, the party advancing the claim has a difficult time proving disparate impact due to small numbers of affected employees, and because they must prove that white employees with the same job function as the minority employees were treated more favorably.272
Also in May 2020, the Center for Food Safety and the Food Chain Workers Alliance filed a rulemaking petition with OSHA, requesting that OSHA promulgate specific rules with respect to meatpacking facilities.280 While AFL-CIO’s actions broadly sought a COVID-19-related ETS, this action by nonprofits was solely focused on OSHA implementing mandatory standards for meatpacking workers.281 The petition asked for mandatory protective gear, physical distancing, and paid sick leave.282
Litigation is ongoing in Jane Does I, II, III v. Scalia, a lawsuit filed in July 2020, against the DOL Secretary Scalia in his official capacity overseeing OSHA.283 The suit, brought by three unidentified individuals, sought to compel OSHA to take action against the Pennsylvania meatpacker, Maid-Rite, to implement basic COVID-19 safety precautions.284 The suit claimed that due to lax standards set by OSHA, many workers at the Maid-Rite plant became sick.285 Workers from the plant had previously filed two complaints to OSHA.286 The first filed in April was dismissed after Maid-Rite representatives told OSHA things were okay inside the plant.287 The other filed in May cited an ‘imminent danger’ which requires OSHA to respond either with an investigation, or in writing explaining why they believe there is no imminent danger.288 According to workers, OSHA did not fulfill either requirement; instead, it stated that not a single COVID-19 complaint is considered an ‘imminent danger.'289
There is evidence that OSHA was aware of conditions that placed workers in imminent danger. For example, contradicting OSHA’s own protocols, the OSHA inspector informed Maid-Rite of the inspection the day before, stating that her supervisor told her to give notice for her safety.290 According to David Michaels, former Assistant Secretary of Labor for OSHA from 2009-2017, this act contradicts OSHA’s own position—if the factory was too dangerous for the OSHA inspector to visit without prior notice, then how could it be so safe that no citations were warranted or that there was no imminent danger?291 The DOL filed a motion to dismiss, warning that if the court sides with the plaintiffs it will lead to an “avalanche” of worker suits.292
In December 2020, OSHA informed Maid-Rite that it would not fine the company, despite COVID-19 infections among half the workforce.293 Instead, OSHA recommended reconfiguring the workspace and installing physical barriers to better protect workers.294 Relying on this letter, the DOL encouraged the court to dismiss the lawsuit.295 The plaintiffs, meanwhile, pointed to OSHA’s lack of enforcement as further proof that the court needed to intervene.296 In a court filing in January 2021, the DOL argued that the decision not to issue a citation meant the court had “no meaningful or effective relief” to provide, and effectively “no jurisdiction to second guess or override OSHA’s decision.”297 The plaintiff’s attorney decried the motion for mootness as “fundamentally wrong” and is still determining how best to respond.298
Labor groups including NAACP, AFL-CIO, and NC Raise Up, filed a petition for rulemaking with the North Carolina Department of Labor, asking for them to issue an emergency temporary standard to protect workers from coronavirus.306 The complaint is largely looking for similar protections as the other states who have issued an ETS: employers would be required to provide PPE for employees, customers would be required to wear masks, facilities would be required to improve ventilation, individuals would be required to submit to temperature checks, and companies would be required to report COVID-19 cases.307 These groups are saying the voluntary guidance currently in place does not do enough to protect workers.308 Executive Director Illana Dubester of The Hispanic Liaison, one labor group joining the petition, stated that thousands of workers were getting sick in meat and poultry factories and spreading it throughout the community, noting, “[t]hese workers, deemed essential, are being treated as expendable by their employers and by our state officials.”309 According to Dubester, voluntary guidance is not enough to protect workers, they need enforceable rules and enforcement from the NCDOL.310
Another claim, outside of the meatpacking context, illustrates a clear instance of agricultural workers and unions litigating for better conditions.311 In Washington state, “[t]wo unions have filed a lawsuit seeking to force Washington’s state labor and health departments to issue rules to protect immigrant [and non-immigrant] farmworkers during the coronavirus pandemic, saying non-binding guidance released by the agencies is inadequate.”312 In Familias Unidas Por La Justicia v. Washington Department of Labor & Industries plaintiffs argue that departments failed their “statutory duties to issue health and safety standards” by issuing non-mandatory and confusing guidelines.313 Plaintiffs are seeking injunctive relief in the form of an emergency rule to protect workers.314 These lawsuits serve as examples of workers and unions suing their own state for failure to quickly and adequately promulgate mandatory labor standards to protect workers.315
The first two cases are shareholder cases. The first, Guo v. Tyson Foods, Inc., was filed on February 2, 2021, in a New York federal court. The complaint alleges that defendants throughout the class period (beginning on March 13, 2020, when the U.S. State of Emergency was declared) knew or should have known that the coronavirus was highly contagious and that the company did not have adequate safety protocols to protect its workers, that Tyson made public statements that were materially false and/or misleading to investors about its response; ultimately leading to complete shutdowns of some facilities and significantly lowered production.316 The proposed class action against the company alleges it made materially false and misleading misrepresentations about worker safety and other issues in violation of the Securities Exchange Act.317
The second suit, Hugues v. Tyson, also filed by a Tyson shareholder, similarly alleges that Tyson failed to maintain safety measures necessary to keep meatpacking plants open and failed to alert employees when their co-workers got sick.318 With three times as many COVID-19 cases and double the related deaths as compared to other meatpacking companies, these statistics from the Tyson plant and the potential Securities and Exchange Commission investigation into Tyson practices, led Tyson’s stock price to drop 2.5% and market capitalization to drop $560 million from December 14 to 15, 2020.319
In the third class action suit, Samuels. v. Cargill Inc., plaintiff grocers allege antitrust violations, naming JBS USA, Tyson Foods, Cargill, and National Beef Packing Company as defendants.320 Plaintiffs allege that these beef packers intentionally agreed to buy and slaughter fewer cattle than they had capacity to process, which effectively reduced the supply of beef and made grocers pay more for beef.321
Two cases highlight two competing interpretations of the primary jurisdiction doctrine as used in the Eighth and Third Circuit Courts. The Rural Community Workers Alliance v. Smithfield Foods case is one such case in which the court has ruled on a primary jurisdiction issue in regard to COVID-19.327 In this case, worker advocacy organization, Rural Community Workers Alliance sued Smithfield on behalf of an employee, alleging that Smithfield failed to adequately protect workers at the plant from COVID-19.328 The court found that (1) OSHA was better positioned than District Court to determine whether the meatpacking plant owner and operator were complying with joint guidance issued by OSHA and the CDC; (2) OSHA had expertise and experience with workplace regulation; (3) determination of whether owner and operator was complying with joint guidance went to the heart of OSHA's special competence; and (4) OSHA had already shown interest in determining whether the plant was abiding by joint guidance by sending owner and operator a request for information regarding COVID-19 work practices and infection the plant the day before lawsuit was filed.329
In Rural Community Workers Alliance v. Smithfield Foods, the court was guided by several factors. Since the claims fully rely on whether the plants are complying with the joint guidance on workplace safety put forth by the CDC, OSHA, and the USDA, the court found that the agencies are in a better position to make a determination.330 The court also found that deference to OSHA and the USDA is the only way in which they could ensure a uniform national enforcement of the joint guidance; especially when guidance is changing rapidly, there must be a uniform source for guidance.331 The court also highlights that if OSHA does not act quickly to enforce safety measures, relief could come with the Secretary of Labor petitioning the court to cease the dangerous conditions.332 This, however, is unlikely to occur, as the Secretary of Labor has stated that the guidance is sufficient. These factors are surely to guide the Eighth Circuit in future decisions.
Benjamin v. JBS was the first decision where defendants’ motion to use primary jurisdiction failed.333 Since this decision differs from the earlier case outcome, it is important to note that the court relied upon the following four factors to determine that primary jurisdiction did not apply:
(1) [w]hether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency’s particular field of expertise; (2) [w]hether the question at issue is particularly within the agency's discretion; (3) [w]hether there exists a substantial danger of inconsistent rulings; and (4) [w]hether a prior application to the agency has been made.334
Defendants, meanwhile, argued that these same factors show that the primary jurisdiction doctrine should prevail. In their view, dealing with the COVID-19 pandemic takes the case out of the conventional experience of judges and into the expertise of the agencies promulgating the guidance.335
The litigation highlights that legal pressure has not provided an incentive to make companies adopt precautionary measures or for regulators to inspect and cite plants and to enact an ETS. To be sure, plaintiffs have seen some victories (see Benjamin), but COVID-19 has slowed the pace of litigation, most cases are ongoing, and more cases will surely follow. Plaintiffs will continue to bring claims in negligence and wrongful death, claims against OSHA and shareholder claims will surely persist. Defendants, meanwhile, will continue to use their principal defenses: the Executive Order “made me do it”, workers’ compensation preemption, primary jurisdiction preemption and in the future, a liability shield defense may be raised. Litigation may have difficulty surviving arguments that OSHA should handle the claims. Especially as OSHA continues to issue guidance (albeit non-mandatory guidance) addressing more specific workplace concerns, courts might be more likely to defer to the agency. As the litigation endures, OSHA and state governments can take affirmative steps to create safer workplaces, to help meatpacking workers expand their avenues for relief.
President Joe Biden’s Executive Order341 calling for OSHA to launch an enforcement program focused on COVID-19 violations and to promulgate an ETS is likely to lead to more business inspections,342 potentially impacting litigation.343 The question remains what form the new ETS will take.344
In the meantime, OSHA has made progress implementing a National Emphasis Program (NEP)345 that (1) targets employers at the heart of large COVID-19 outbreaks and complaints by increasing inspections and whistleblower protections346 and (2) updates an OSHA Interim Enforcement Response Plan.347 An NEP is a directive from OSHA that focuses its resources on a specific risk or hazard—previously they had been issued for amputations in manufacturing industries and respirable Crystalline Silica for example.348 The NEP targets employers who have been the source of large outbreaks or multiple complaints for unsafe working conditions, including meat and poultry processing plants.349 These workplaces will be the target of heightened enforcement efforts as well as a heightened focus on preventing retaliation for whistleblowers.350 Enforcement for the NEP provisions began on March 25, 2021, and will stay in place for one year with the potential for extension or shortening depending on the pandemic.351 Any OSHA State Plan state will have sixty days to notify OSHA that they are either adopting the NEP, relying on their own standards, or not adopting the NEP.352 While the federal OSHA highly recommends adoption of the NEP, it is not required.353 Under a typical NEP, OSHA must conduct outreach at least ninety days prior to initiating an inspection; however, OSHA argued that the national outreach regarding the pandemic over the last year has satisfied this requirement, allowing immediate inspections to begin.354 OSHA also has instructed inspections to be conducted on-site wherever practical unless the only available inspector has a medical concern.355
Other steps beyond the NEP may follow. The following paragraphs focus on how the meatpacking litigation and state best practices can inform the development of: (1) a new federal OSHA ETS, based on the Virginia model, to guide COVID-19 inspections and citations, and (2) state level reform of workers’ compensation program to provide meatpacking employees with benefits for COVID-19 workplace exposure. These two reforms will exert pressure on firms by adding costs—fines associated with OSHA non-compliance with a new ETS, and worker compensation payouts for employees who contract COVID-19 on the job—to adopt necessary workplace safety precautions.
An ETS for the meatpacking industry would not require notice-and-comment rulemaking, thus being a far more rapid way to implement safety regulations.357 This ETS would act as a notice of proposed rulemaking, starting the six-month timeline for OSHA to promulgate a final standard.358 In order to pass an ETS, OSHA must show that employees are in “grave danger,” which could prove challenging as more employees are receiving COVID-19 vaccines.359 However, given ongoing outbreaks and continued lack of oversight, there is a strong case to be made that employees continue to be in “grave danger.” In addition, OSHA does have a proposed airborne infectious disease rule that was originally drafted in 2009 in response to the H1N1 flu outbreak, which may make it easier to draft the current rule.360 The Heroes Act, approved by the U.S. House of Representatives in 2020, also included an outline for a rule which may assist OSHA.361
A new ETS can be modeled after one of more successful ETS state-level plans. As noted earlier, as COVID-19 cases started to rise, states began to pass liability shields and narrow avenues for workers’ compensation relief. A few states went in the opposite direction and instead opted to increase protections for workers. These COVID-19 standards are in large part due to the lack of action on the federal level from OSHA. Fourteen states have adopted comprehensive COVID-19 worker safety protections as of June 9, 2021.362 Some states issued executive orders with worker protections, Virginia issued a first-ever Emergency Standard to protect workers, and Oregon and Michigan issued temporary standards. Other states have issued guidelines.363
The Virginia ETS should be used to draft the new federal OSHA ETS. Virginia was the first, and so far only, state to pass temporary legislation requiring employers to protect employees from COVID-19 while at work.364 The permanent rule follows what was, at the time, the first ETS, which went into effect July 27, 2020.365 The ETS required employers who were covered by the Virginia Occupational Safety and Health program to comply with all guidance issued by the CDC and contained potential for fines in excess of $130,000 for repeat or willful violations.366 The new permanent rule, passed by the Virginia Safety and Health Codes Board, replaced the ETS that was set to expire on January 26, 2021.367 The new rule maintains most of the previous ETS by continuing to group jobs in very high, high, medium, and low risk categories and applying different safety standards based on that classification.368 Some of the included rules or precautions include: no enforcement actions against healthcare providers or other employers attempting in good faith to provide PPE, but failing due to short supply; requiring employers to provide telework or staggered shifts when feasible; provide COVID-19 training to all employees, except those deemed “low-hazard”; prepare infectious disease preparedness plans; and it adopts time-based return to work requirements consistent with the CDC guidelines.369 The Virginia ETS does not expire until Governor Northam lifts the state of emergency, and the state’s Safety and Health Codes Board agrees there is no longer a need. Unlike California’s rule, Virginia does not have any requirements regarding paid leave for those exposed to COVID-19 at work nor does it require employee testing after a workplace outbreak.
And yet, some details of a new ETS still need to be determined. For example, the state will need to determine the way that a new ETS will impact litigation and how a new ETS will operate in states that have passed their own COVID-19 liability protections. A new OSHA temporary standard may have an impact on litigation.370 Citations may be used to evidence employer wrongdoing in certain types of cases—such as personal injury or wrongful death—and they may also be used to meet the “on the job” bar in workers compensation claims.371
It is uncertain how a federal OSHA standard would interact with these state COVID-19 liability shields. State law, it seems, would still apply and there would not be any preemptive force to a new federal standard. An ETS through OSHA would, perhaps, create for some litigants a duty of care in a negligence claim against a business.
There is good reason for OSHA to take the time necessary to ensure the new ETS is supported by data and science before promulgation. Emergency standards are rare, and are meant to bypass the normal notice-and-comment rule-making process required of agencies.372 OSHA has issued nine emergency standards over the agency’s history but of the six that were challenged, only one was successfully implemented.373 The courts have been hesitant to allow such standards to go into place as they have likened them to agency-made legislation.374 The last ETS to go into effect was in June 2021, for COVID-19 in the healthcare industry.375 It is likely that courts would be skeptical of a COVID-19 standard for meatpacking. One potential challenge will be showing that workers in meatpacking plants continue to be in “grave danger” from COVID-19 and that an ETS is necessary in order to protect them.376 This is especially challenging with increasing vaccination rates leading to lower risk of spread, a point business groups are quick to point out.377 However, Rebecca Reindel, the AFL-CIO’s Director of Occupational Safety and Health, said that enforceable standards are still necessary even with rising vaccination rates.378
California’s Executive Order N-62-20 (Senate Bill 1159) stands as an example of a workers’ compensation system that was re-worked and expanded for COVID-19.384 The California bill has conditions that need to be met prior to receiving the presumption385 and an avenue for employers to dispute the presumption and controvert it with other evidence.386 The California Executive Order is broad, covering all workers so long as they meet the criteria set out in § 1(a-d):
(a) the employee tested positive for COVID-19, or was diagnosed, within 14 days of performing labor or services at their place of employment; (b) the day referenced in (a) was on or after March 19, 2020387; (c) the employee’s place of employment was outside their residence; and (d) the diagnosis of COVID-19 was done by a licensed physician and that diagnosis is confirmed by testing within 30 days of diagnosis.388
California later passed SB 1159389 which practically codifies EO 62-20, creating a presumption of coverage for COVID-19 and making injuries due to related illness compensable.390 This statute includes a provision that requires employees to use all sick leave benefits available in response to COVID-19 before they are eligible for disability benefits.391
Coupled with a new federal ETS, OSHA inspections and citations can, in turn, be used by meatpacking employees and their families as evidence of injury in their worker’s compensation proceedings, and as evidence of wrongdoing in any wrongful death and negligence lawsuits that may arise. Both of these recommendations will force meatpacking plants to take necessary measures to increase workplace safety to prevent COVID-19 spread.
Litigation reveals regulatory gaps and breaches in workplace safety such as lax enforcement of OSHA with no ETS, state attempts to narrow coverage for workers’ compensation during COVID-19, and state efforts to draft liability shields. OSHA was criticized for not preventing virus spread in the meatpacking plants by offering recommendations instead of an emergency rule and by applying scant oversight and negligible penalties despite widespread virus outbreaks at the plants.
This Article recommends a new OSHA ETS modeled after the Virginia State ETS, and a reform of worker’s compensation programs modeled after California’s workers’ compensation system. These solutions can inform three discussions: (1) the new House Select Subcommittee on the Coronavirus Crisis which recently launched an investigation into how the country’s meatpacking companies handled the pandemic, (2) discussion concerning a new ETS for the meatpacking industry following President Joe Biden’s January 2021 Executive Order, and (3) litigation before the Eighth Circuit and state courts on cases accusing the world’s largest meat processors of wrongful death and negligence in placing employees at risk of contracting COVID-19.
In the meantime, litigation will continue at a slow pace given COVID-19 restrictions on trials. Gains have been made by some plaintiffs, but meatpacking defendants benefit from the absence of a federal ETS and from very strong defenses: primary jurisdiction preemption, workers’ compensation preemption and now, state liability shields. A federal ETS, coupled with stronger workers’ compensation coverage at the state level, would provide the necessary incentive to motivate firms to adopt safety measures and for meatpacking companies to adhere to workplace standards to keep those we deem “essential,” truly safe.
* Associate Professor of Law, University of Colorado Law School. J.D., Northwestern University; Ph.D., Purdue University (Agricultural Economics). I am grateful to Gordon Gamm for the Gamm Justice Award, and Project Protect Food System Workers for the stories I have heard firsthand, and Sidney Tikalsky for excellent research assistance. I thank Michael and our three C’s for support throughout this project and during the pandemic. I welcome all comments at: alexia.brunet@colorado.edu.
1 JBS USA Holdings Inc. based in Greeley, Colorado (hereinafter JBS), Smithfield Foods Inc., based in Smithfield, Virginia (hereinafter Smithfield) and Tyson Foods Inc., based in Springdale, Arkansas (hereinafter Tyson). The 2019 Top 100 Meat & Poultry Processors, Nat’l Provisioner, https://www.provisioneronline.com/2019-top-100-meat-and-poultry-processors (last visited Feb. 18, 2021).
2 Rural Cmty. Workers All. v. Smithfield Foods, Inc., 459 F. Supp. 3d 1228, 1232 (W.D. Mo. 2020).
3 Id. at 1234.
4 Id.
5 Benjamin v. JBS S.A., 516 F. Supp. 3d 463, 467 (E.D. Pa. 2021).
6 Id.
7 See id. at 476.
8 Petition at Law and Demand for Jury Trial at 2, Buljic v. Tyson Foods, Inc., No. 0107 LACV140521 (Iowa Dist. Ct. filed June 25, 2020).
9 Specifically, “At least one worker at the facility vomited on the production line and management allowed him to continue working and return to work the next day.” Id. at 9.
10 Michael Hirtzer, Tyson Accused of Misleading Interpreters at Virus-Hit Plant, Bloomberg (Nov. 30, 2020, 6:03 PM) (updated 7:43 PM), https://www.bloomberg.com/news/articles/2020-11-30/tyson-accused-of-misleading-interpreters-at-virus-hit-iowa-plant.
11 Id.
12 See Archived: WHO Timeline - COVID-19, World Health Org. (Apr. 27, 2020), https://www.who.int/news/item/27-04-2020-who-timeline---covid-19 (listing dates of confirmed cases in China); CDC Museum COVID-19 Timeline, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/museum/timeline/covid19.html#:~:text=January%2020%2C%202020%20CDC,18%20in%20Washington%20state (last reviewed Aug. 4, 2021) (listing dates of confirmed cases in U.S.).
13 WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 - 11 March 2020, World Health Org. (Mar. 11, 2020), https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-Covid-19---11-march-2020.
14 Id.
15 COVID-19: Essential Workers in the States, Nat’l Conf. State Legislatures (Jan. 11, 2021), https://www.ncsl.org/research/labor-and-employment/Covid-19-essential-workers-in-the-states.aspx.
16 Identifying Critical Infrastructure During COVID-19, Cybersecurity & Infrastructure Sec. Agency (Mar. 19, 2020) (updated Aug. 13, 2020), https://www.cisa.gov/identifying-critical-infrastructure-during-Covid-19.
17 Id.
18 Id.; see also Food and Agriculture Sector, Cybersecurity & Infrastructure Sec. Agency, https://www.cisa.gov/food-and-agriculture-sector (last visited Feb. 17, 2021).
19 Jonathan W. Dyal et al., COVID-19 Among Workers in Meat and Poultry Processing Facilities — 19 States, April 2020, 69 Morbidity & Mortality Wkly. Rep. 533, 557–59 (2020).
20 Meatpacking, Merriam-Webster, https://www.merriam-webster.com/dictionary/meatpacking (last visited Aug. 6, 2021).
21 See U.S. Dep’t of Agric., Econ. Rsch. Serv., AER-785, Consolidation in U.S. Meatpacking (2000).
22 In 2001, Tyson purchased IBP, Inc., then the nation’s largest beef packer. Tyson Foods, Inc., Annual Report (Form 10-K) 4 (Dec. 21, 2001). In 2002, Cargill purchased Taylor Packing Co. Taylor Packing, Careers Food, https://www.careersinfood.com/taylor-packing-listing-3151.htm (last visited Aug. 28, 2021). In 2007 and 2008, JBS acquired Swift & Co. and Smithfield Beef Group, Inc., respectively, the third- and fifth-largest U.S. beef packers. JBS S.A., Financial Statements and Report of Independent Auditors 8, 12 (Feb. 16, 2009), https://sec.report/otc/financial-report/20792/2008-Financial-Statements.pdf. Similarly, Smithfield was bought by the Hong Kong-based WH Group, the largest pork processor in the world a decade ago, and JBS acquired Cargill’s U.S.-based pork business in 2015 for $1.45 billion. JBS USA Pork Agrees to Purchase Cargill Pork Business, Cargill (July 1, 2015), https://www.cargill.com/news/releases/2015/NA31861255.jsp. See generally Explainer: How Four Big Companies Control the U.S. Beef Industry, Reuters (June 17, 2021), https://www.reuters.com/business/how-four-big-companies-control-us-beef-industry-2021-06-17/.
23 The 2019 Top 100 Meat & Poultry Processors, supra note 1.
24 Id. (listing the meat products produced by each company). See also Smithfield Foods, Inc., Annual Report (Form 10-K) 3 (Mar. 29, 2016).
25 See generally U.S. Dep’t of Agric., Econ. Rsch. Serv., supra note 21.
26 See generally id.
27 Dyal et al., supra note 19, at 557; May 2020 National Industry-Specific Occupational Employment and Wage Estimates, NAICS 311600 - Animal Slaughtering and Processing, U.S. Bureau Lab. Stat., https://www.bls.gov/oes/current/naics4_311600.htm (Mar. 31, 2021).
28 Dyal et al., supra note 19.
29 May 2020 National Industry-Specific Occupational Employment and Wage Estimates, NAICS 311600 - Animal Slaughtering and Processing, supra note 27.
30 Sonja Nossent et al., Working Conditions in the European Meat Processing Industry 10 (1995); see Nils Fallentin et al., Physical Exposure Assessment in Monotonous Repetitive Work — the PRIM Study, 27 Scandinavian J. Work Env’t & Health 21 (2001).
31 See Nossent et al., supra note 30.
32 See Meatpacking, U.S Dep’t Lab., https://www.osha.gov/meatpacking (last visited July 23, 2021).
33 Rachel Nadas & Jayesh Rathod, Damaged Bodies, Damaged Lives: Immigrant Worker Injuries as Dignity Takings, 92 Chi.-Kent L. Rev. 1155, 1155 (2018).
34 Sara A. Quandt et al., Illnesses and Injuries Reported by Latino Poultry Workers in Western North Carolina, 49 Am. J. Indus. Med. 343 (2006).
35 William G. Whittaker, Cong. Rsch. Serv., RL33002, Labor Practices in the Meat Packing and Poultry Processing Industry: An Overview (2006); see Alex Gangitano, Meatpacking Plant Workers Take New Approach in COVID-19 Safety Push, Hill (July 15, 2020), https://thehill.com/business-a-lobbying/507373-meatpacking-plant-workers-take-new-approach-in-covid-19-safety-push (noting that as of July 14, 2020, over 35,000 employees at meat processing plants have contracted COVID-19).
36 See William Kandel & Emilio A. Parrado, Restructuring of the US Meat Processing Industry and New Hispanic Migrant Destinations, 31 Population & Dev. Rev. 447 (2005).
37 Fatima Hussein & Genevieve Douglas, Language Barriers Pose Worker Rights Pitfalls During Pandemic, Bloomberg L. (Oct. 9, 2020), https://news.bloomberglaw.com/safety/language-barriers-pose-worker-rights-pitfalls-during-pandemic/.
38 See Corky Siemaszko, Language Barriers Helped Turn Smithfield Foods Meat Plant into COVID-19 Hotspot, NBC News (Apr. 23, 2020, 2:23 PM) (updated 3:42 PM), https://www.nbcnews.com/news/us-news/language-barriers-helped-turn-smithfield-foods-meat-plant-Covid-19-n1190736.
39 Id.
40 See Cortney Cowley, COVID-19 Disruptions in the U.S. Meat Supply Chain, Fed. Rsrv. Bank Kan. City (July 31, 2020), https://www.kansascityfed.org/agriculture/ag-outlooks/COVID-19-US-Meat-Supply-Chain/.
41 See Zoe Strozewski, South Dakota Meat Processing Plant, Which Produces About 5% of US’ Pork Supply, to Go on Strike, Newsweek (June 8, 2021), https://www.newsweek.com/south-dakota-meat-processing-plant-which-produces-about-5-us-pork-supply-go-strike-1598680; see also Siemaszko, supra note 38.
42 Siemaszko, supra note 38.
43 Tyson Fresh Meats and Cass County, Ind., Health Department Issue Joint Statement, Tyson (Apr. 22, 2020), https://www.tysonfoods.com/news/news-releases/2020/4/tyson-fresh-meats-and-cass-county-ind-health-department-issue-joint; see Dianne Gallagher & Pamela Kirkland, Meat Processing Plants Across the US Are Closing Due to the Pandemic. Will Consumers Feel the Impact?, CNN Bus., https://www.cnn.com/2020/04/26/business/meat-processing-plants-coronavirus/index.html (Apr. 27, 2020).
44 See Gallagher & Kirkland, supra note 43.
45 Cowley, supra note 40.
46 Id.
47 See Polly Mosendz et al., U.S. Meat Plants Are Deadly As Ever, with No Incentive to Change, Bloomberg L. (June 18, 2020), https://news.bloomberglaw.com/daily-labor-report/u-s-meat-plants-are-deadly-as-ever-with-no-incentive-to-change.
48 See Siemaszko, supra note 38.
49 See Mosendz et al., supra note 47.
50 Zack Budryk, Tyson Foods Takes Out Full-Page Ad: ‘The Food Supply Chain Is Breaking,’ Hill (Apr. 27, 2020), https://thehill.com/policy/healthcare/494772-tyson-foods-takes-out-full-page-ad-the-food-supply-chain-is-breaking (noting that the first worker at this plant tested positive for the virus on March 24).
51 Exec. Order No. 13,917, 85 Fed. Reg. 26,313 (Apr. 28, 2020); see also Press Release, U.S. Dep’t of Agric., USDA to Implement President Trump’s Executive Order on Meat and Poultry Processors (Apr. 28, 2020), https://www.usda.gov/media/press-releases/2020/04/28/usda-implement-president-trumps-executive-order-meat-and-poultry.
52 Sky Chadde, Tracking Covid-19’s Impact on Meatpacking Workers and Industry, Midwest Ctr. for Investigative Reporting (Apr. 16, 2020) (updated Aug. 10, 2021), https://investigatemidwest.org/2020/04/16/tracking-covid-19s-impact-on-meatpacking-workers-and-industry/.
53 Bernice Yeung & Michael Grabell, After Hundreds of Meatpacking Workers Died from COVID-19, Congress Wants Answers, Gov’t Exec. (Feb. 5, 2021), https://www.govexec.com/oversight/2021/02/after-hundreds-meatpacking-workers-died-Covid-19-congress-wants-answers/171874/.
54 Lauren Krugel, Alberta RCMP Reviewing Whether COVID-19 Death of Cargill Meat Plant Worker Was Criminal, Glob. News (Jan. 11, 2021, 2:55 PM) (updated 8:32 PM), https://globalnews.ca/news/7568659/alberta-Covid-19-cargill-worker-death-rcmp-review/ (discussing a criminal investigation by the Royal Canadian Mounted Police in response to a meatpacking worker’s death).
55 Complaint, Rural Cmty. Workers All. v. Smithfield Foods, Inc., 459 F. Supp. 3d 1228 (W.D. Mo. 2020) (No. 5:20-cv-06063).
56 See, e.g., Complaint and Emergency Petition for Emergency Mandamus Relief, Doe I v. Scalia, No. 3:20-cv-01260, 2021 WL 1197669 (M.D. Pa. Mar. 30, 2021), appeal docketed, No. 21-2057 (3d Cir. June 1, 2021).
57 Class Action Complaint for Violations of the Federal Securities Laws, Guo v. Tyson Foods, Inc., No. 1:21-cv-00552 (E.D.N.Y. filed Feb. 2, 2021); Hailey Konnath, Tyson Hit with Investor Suit Over Lackluster Virus Response, Law360 (Feb. 2, 2021), https://www.law360.com/articles/1351425/tyson-hit-with-investor-suit-over-lackluster-virus-response.
58 See Roy Strom, A Trial Firm Questions Big Law’s Pandemic Litigation Tactics, Bloomberg L. (Jan. 28, 2021), https://news.bloomberglaw.com/business-and-practice/a-trial-firm-questions-big-laws-pandemic-litigation-tactics; see also Jennifer Kay, Florida Faces ‘Daunting’ Backlog of Pending Cases Due to Virus, Bloomberg L. (Jan. 26, 2021), https://news.bloomberglaw.com/business-and-practice/florida-faces-daunting-backlog-of-pending-cases-due-to-virus.
59 See Sebastian Martinez Valdivia & Dan Margolies, Workers Sue Smithfield Foods, Allege Conditions Put Them at Risk for COVID-19, NPR (Apr. 24, 2020), https://www.npr.org/2020/04/24/844644200/workers-sue-smithfield-foods-allege-conditions-put-them-at-risk-for-covid-19.
60 See Doe I, 2021 WL 1197669.
61 See Noam Scheiber, OSHA Is Under Fire Over Its Regulation of Meatpacking Plants., N.Y. Times (Oct. 22, 2020), https://www.nytimes.com/2020/10/22/world/osha-is-under-fire-over-its-regulation-of-meatpacking-plants.html.
62 See id.
63 See Mosendz, et al., supra note 47.
64 See Catherine K. Ruckelshaus, Labor's Wage War, 35 Fordham Urb. L.J. 373, 380–82 (2008).
65 See, e.g., Lisa Heinzerling, The Varieties and Limits of Transparency in U.S. Food Law, 70 Food & Drug L.J. 11, 21 (2015) (remarking that with respect to workers and animal welfare, the regulations often opt for secrecy over transparency); see also Emily M. Broad Leib & Margot J. Pollans, The New Food Safety, 107 Calif. L. Rev. 1173 (2019) (making the case for a broader understanding of ‘food safety’ to encompass diet and consumption as well as workplace safety); Jayesh M. Rathod, Beyond the “Chilling Effect”: Immigrant Worker Behavior and the Regulation of Occupational Safety & Health, 14 Emp. Rts. & Emp. Pol'y J. 267 (2010).
66 See Jennifer Dillard, Note, A Slaughterhouse Nightmare: Psychological Harm Suffered by Slaughterhouse Employees and the Possibility of Redress Through Legal Reform, 15 Geo. J. on Poverty L. & Pol’y 391 (2008).
67 Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), Ctrs. for Disease Control & Prevention [hereinafter Guidance for Businesses], https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html (Mar. 8, 2021); U.S. Dep’t of Lab., Occupational Safety & Health Admin., OSHA 3990-03, Guidance on Preparing Workplaces for COVID-19 (2020) [hereinafter Guidance on Preparing Workplaces], https://www.osha.gov/sites/default/files/publications/OSHA3990.pdf.
68 See Colo. Dep’t of Pub. Health & Env’t, Amended Public Health Order 20-24 Implementing Stay at Home Requirements (2020), https://sjbpublichealth.org/wp-content/uploads/2020/03/Public_Health_Order_20-20_3-25-20.pdf.
69 About OSHA, U.S. Dep’t Lab., https://www.osha.gov/aboutosha (last visited Feb. 17, 2021).
70 Id.
71 Id.
72 Id.
73 Law and Regulations, U.S. Dep’t Lab., https://www.osha.gov/laws-regs (last visited Feb. 17, 2021).
74 U.S. Dep’t of Lab., Occupational Safety & Health Admin., OSHA 3021-06R, Workers’ Rights 7 (2017) [hereinafter Workers’ Rights], https://www.osha.gov/Publications/osha3021.pdf.
75 U.S. Dep’t of Lab., Occupational Safety & Health Admin., Field Operations Manual 4-2 (2020) [hereinafter Field Operations Manual], https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-00-164_1.pdf.
76 Id.
77 § 5(a)(1) of the OSH Act, 29 U.S.C. § 654(a)(1).
78 Tim Mullaney, The Union Battle Versus Trump Administration Over Bringing Workers Back, Safely, CNBC (July 10, 2020, 8:27 AM) (updated 1:11 PM), https://www.cnbc.com/2020/07/10/as-workplaces-reopen-unions-ask-trump-admin-where-is-osha.html.
79 Id.; see also David Sparkman, Will Employees Be Able to Sue Over OSHA Violations?, EHS Today (Feb. 22, 2021), https://www.ehstoday.com/standards/osha/article/21155868/will-employees-be-able-to-sue-over-osha-violations.
80 See Field Operations Manual, supra note 75, at 4-12 (“In a Section 5(a)(1) citation, a ‘hazard’ is defined as a workplace condition or practice to which employees are exposed, creating the potential for death or serious physical harm to employees.”).
81 See id. A coronavirus specific example would look more like: Employees work shoulder to shoulder (workplace condition) exposing them to person to person spread of coronavirus (potential for serious harm or death). The hazard would be the potential spread of coronavirus, not the lack of abatement practices or precautions.
82 See Complaint and Emergency Petition for Emergency Mandamus Relief, supra note 56, at 20.
83 See Miriam Jordan & Caitlin Dickerson, Poultry Worker’s Death Highlights Spread of Coronavirus in Meat Plants, N.Y. Times (Apr. 9, 2020) (updated Jan. 28, 2021), https://www.nytimes.com/2020/04/09/us/coronavirus-chicken-meat-processing-plants-immigrants.html; Caitlin Dickerson & Miriam Jordan, South Dakota Meat Plant Is Now Country’s Biggest Coronavirus Hot Spot, N.Y. Times (Apr. 15, 2020) (updated May 4, 2020), https://www.nytimes.com/2020/04/15/us/coronavirus-south-dakota-meat-plant-refugees.html.
84 Field Operations Manual, supra note 75, at 4-18.
85 Id. at 4-14.
86 See, e.g., Smithfield Foods Says that the Company and Its Team Members Want the Same Thing: To Protect Employee Health and Safety While Also Safeguarding America’s Food Supply, Globe Newswire (May 1, 2021), http://www.globenewswire.com/newsrelease/2020/05/01/2026373/0/en/Smithfield-Foods-Says-That-the-Company-and-Its-Team-Members-Want-the-Same-Thing-To-Protect-Employee-Health-and-Safety-While-Also-Safeguarding-America-s-Food-Supply.html; JBS USA Announces Temporary Closure of Greeley Beef Facility, JBS Foods (Apr. 13, 2020), https://jbsfoodsgroup.com/articles/jbs-usa-announces-temporary-closure-of-greeley-beef-facility.
87 See Scheiber, supra note 61.
88 Field Operations Manual, supra note 75, at 4-17.
89 See Ryan J. Foley, Iowa Finds No Violations at Tyson Plant with Deadly Outbreak, ABC News (June 23, 2020), https://abcnews.go.com/Health/wireStory/iowa-finds-violations-tyson-plant-deadly-outbreak-71419503.
90 Rachelle Chase, Months After Outbreak, Safety Concerns Remain at Tyson Waterloo, Iowa Starting Line (Aug. 7, 2020), https://iowastartingline.com/2020/08/07/months-after-outbreak-safety-concerns-remain-at-tyson-waterloo/.
91 29 U.S.C. § 654.
92 Workers’ Rights, supra note 74, at 11.
93 Id. "Standard means a standard which requires . . . the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 C.F.R. § 1910.2(f) (2017) (emphasis added). Since guidance is not required, it would not qualify as a standard.
94 Guidance for Businesses, supra note 67; COVID-19 Critical Infrastructure Sector Response Planning, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/critical-infrastructure-sectors.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcommunity%2Fcritical-workers%2Fimplementing-safety-practices.html (Dec. 3, 2020); Guidance on Preparing Workplaces, supra note 67.
95 29 U.S.C. § 654; Workers’ Rights, supra note 74, at 7–8.
96 See Michael S. Worrall, Note, Meatpacking Safety: Is OSHA Enforcement Adequate?, 9 Drake J. Agric. L. 299, 321 (2004).
97 See id. at 315.
98 See id. at 302, 321; Sidney Shapiro et al., Regulatory Dysfunction: How Insufficient Resources, Outdated Law, and Political Interference Cripple the ‘Protector Agencies,’ Ctr. for Progressive Reform (Nov. 5, 2009), https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1500577_code254274.pdf?abstractid=1500577&mirid=1 (noting the regulatory dysfunction in “protector agencies” identified as OSHA, FDA, NHTSA, EPA, and CPSC, problems rooted in shortfalls in funding, outdated authorizing statutes, political interference and the aging and demoralized civil service).
99 See Thomas McGarity et al., Workers at Risk: Regulatory Dysfunction at OSHA, Ctr. for Progressive Reform 6–7 (Feb. 1, 2010), https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1717097_code1491968.pdf?abstractid=1566897&mirid=1.
100 Lauren Weber, Why So Many Covid-19 Workers’ Comp Claims Are Being Rejected, Wall St. J. (Feb. 14, 2021), https://www.wsj.com/articles/why-so-many-Covid-19-workers-comp-claims-are-being-rejected-11613316304.
101 Id.
102 Id.
103 Id.
104 Id.
105 Id.
106 See, e.g., What is Worker Compensation?, Colo. Dep’t Lab. & Emp., https://cdle.colorado.gov/dwc (last visited Nov. 5, 2021).
107 Russell Gold & Leslie Scism, States Aim to Expand Workers’ Compensation for Covid-19, Wall St. J. (Apr. 27, 2020), https://www.wsj.com/articles/states-aim-to-expand-workers-compensation-for-covid-19-11588011257?mod=article_inline&tesla=y.
108 Weber, supra note 100 (noting that attorney Healther Kaplan filed 20 workers’ compensation claims for people who said they contracted Covid-19 while on the job at meatpacking plants and all were denied).
109 Id.
110 See Sapna Jain, Can We Keep Meatpacking Companies Accountable for Hiring Undocumented Immigrants?, 3 Emory Corp. Governance & Accountability Rev. 157, 157–158, 161 (2016).
111 See Weber, supra note 100.
112 Gold & Scism, supra note 107.
113 See id.
114 Id.
115 Id.
116 Id.
117 See Bryce Covert, Covid-19 Workers’ Comp Claims Are Being Held Up or Denied, Intercept (Sept. 7, 2020), https://theintercept.com/2020/09/07/coronavirus-workers-compensation-claims-labor/.
118 See Louise Escola, Insurers Denying Nearly Half of COVID-19 Claims: Texas Report, Bus. Ins. (Mar. 5, 2021), https://www.businessinsurance.com/article/20210305/NEWS08/912340275/Insurers-denying-nearly-half-of-COVID-19-claims-Texas-comp-report-coronavirus-p; Weber, supra note 100.
119 Weber, supra note 100.
120 Id.
121 Id.
122 Id.
123 See Olga Kharif, Do-It-Yourself Contact Tracing for 1.3 Million: A Union Jumps in, Bloomberg (Aug. 10, 2020), https://www.bloomberg.com/news/articles/2020-08-10/with-official-systems-swamped-union-gets-into-contact-tracing (discussing that since the start of the pandemic, the UFCW union has sent agents into grocery stores, meatpacking plants and food-processing facilities, talking to workers and reviewing work schedules to determine who might have been exposed); see also Selena Simmons-Duffin, Why Contact Tracing Couldn’t Keep Up with the U.S. COVID Outbreak, NPR (June 3, 2021), https://www.npr.org/sections/health-shots/2021/06/03/1002878557/why-contact-tracing-couldnt-keep-up-with-the-u-s-covid-outbreak.
124 29 C.F.R. § 1904.5 (2019); see also Kharif, supra note 123.
125 Regulations, U.S. Dep’t Lab., https://www.osha.gov/coronavirus/standards (last visited Nov. 5, 2021); Kharif, supra note 123.
126 Kharif, supra note 123.
127 See id.
128 Id.
129 Id.
130 See Lance Compa, Not Dead Yet: Preserving Labor Law Strengths While Exploring New Labor Law Strategies, 4 U.C. Irvine L. Rev. 609, 615, 619 (2014) (highlighting effective unionization pushes from the UFCW union with Smithfield in 2008, leading to an NLRB election).
131 Exec. Order No. 13,917, 85 Fed. Reg. at 26,313 (Apr. 28, 2020); see also Press Release, U.S. Dep’t of Agric., supra note 51.
132 Exec. Order No. 13,917, 85 Fed. Reg. at 26,313 (Apr. 28, 2020); see also Press Release, U.S. Dep’t. of Agric., supra note 51.
133 Press Release, U.S. Dep’t. of Agric., supra note 51.
134 Exec. Order No. 13,917, 85 Fed. Reg. at 26,313 (Apr. 28, 2020); see also Press Release, U.S. Dep’t. of Agric., supra note 51.
135 Exec. Order No. 13,917, 85 Fed. Reg. at 26,313 (Apr. 28, 2020); see also Press Release, U.S. Dep’t. of Agric., supra note 51.
136 Exec. Order No. 13,917, 85 Fed. Reg. at 26,313 (Apr. 28, 2020).
137 Id.
138 Id.; see also Press Release, U.S. Dep’t. of Agric., supra note 51.
139 Exec. Order No. 13,917, 85 Fed. Reg. at 26,314 (Apr. 28, 2020).
140 Press Release, Sen. Elizabeth Warren, Warren, Booker Release Information from Their Investigation into Giant Meatpackers Exploiting Workers and Consumers During COVID-19 (July 24, 2020), https://www.warren.senate.gov/newsroom/press-releases/warren-booker-release-information-from-their-investigation-into-giant-meatpackers-exploiting-workers-and-consumers-during-covid-19.
141 Michael Corkery & David Yaffe-Bellany, As Meat Plants Stayed Open to Feed Americans, Exports to China Surged, N.Y. Times (June 16, 2020) (updated July 4, 2021), https://www.nytimes.com/2020/06/16/business/meat-industry-china-pork.html.
142 See Bill Tomson, Hundreds of US Beef and Pork Plants Eligible to Export to China, Agri-Pulse (Mar. 21, 2020), https://www.agri-pulse.com/articles/13341-hundreds-of-us-beef-and-pork-plants-eligible-to-export-to-china.
143 See id.
144 JBS Signs a $1.5 Billion Deal with Alibaba to Sell Meat in China, Euromeat (Nov. 9, 2020), https://www.euromeatnews.com/Article-JBS-signs-a-$1.5-billion-deal-with-Alibaba-to-sell-meat-in-China/2168.
145 Brazilian Meat Giant JBS Expands Its Reach in China, Mongabay (Feb. 20, 2020), https://news.mongabay.com/2020/02/brazilian-meat-giant-jbs-expands-its-reach-in-china/.
146 Lillianna Byington, US Meat Exports to China Rise as Supply Falls, Analysis Shows, Food Dive (May 12, 2020), https://www.fooddive.com/news/us-meat-exports-to-china-rise-as-supply-falls-analysis-shows-1/577711/.
147 Corkery & Yaffe-Bellany, supra note 141.
148 See Karen Braun, U.S. Faces Meat Shortage While Its Pork Exports to China Soar, Reuters (May 5, 2020), https://www.reuters.com/article/us-usa-pork-braun/u-s-faces-meat-shortage-while-its-pork-exports-to-china-soar-braun-idUSKBN22H2Q6.
149 Beef Exports to the People’s Republic of China, U.S. Dep’t Agric., https://www.ams.usda.gov/services/imports-exports/beef-ev-china (last visited Feb. 17, 2021); see also Tomson, supra note 142 (discussing China’s agreement to lift certain hormone and age restrictions on the beef imports which has opened the door to large exports).
150 Tomson, supra note 142.
151 Corkery & Yaffe-Bellany, supra note 141.
152 Id.
153 Press Release, Sen. Elizabeth Warren, supra note 140.
154 Id.
155 See Tom Polansek, As U.S. Meat Workers Fall Sick and Supplies Dwindle, Exports to China Soar, Reuters (May 11, 2020), https://www.reuters.com/article/us-health-coronavirus-usa-meatpacking-an/as-u-s-meat-workers-fall-sick-and-supplies-dwindle-exports-to-china-soar-idUSKBN22N0IN. The meat processing disruptions were predicted to lead to a 30% decrease in available meat products in supermarkets as well as a 20% increase in price. In response to the rising cases in the meat industry and the potential shortages domestically, U.S. Representative Rosa DeLauro (D-Ct) stated, “That tragic outcome is all the worse when the food being processed is not going to our nation’s families.” Id.
156 See Daniel Arkin, Tyson Foods Chairman Warns ‘the Food Supply Chain Is Breaking,’ NBC News (Apr. 27, 2020), https://www.nbcnews.com/news/us-news/tyson-foods-chairman-warns-food-supply -chain-breaking-n1193256. John Tyson, the chairman of Tyson Foods warned that “millions of pounds of meat will disappear” and that “[t]he food supply chain is breaking” due to facility closures. Id.
157 Tom Polansek, Frozen U.S. Pork Supplies Fell in June, Exports to China Rose: Data, Reuters (July 22, 2020), https://www.reuters.com/article/us-health-coronavirus-usameatpacking/frozen- us-pork-supplies-fell-in-june-exports-to-china-rose-data-idUSKCN24N2VE.
158 See Ally J. Levine et al., A Meaty Problem, Reuters Graphics (May 11, 2020), https://graphics.reuters.com/HEALTH-CORONAVIRUS/USA-MEATPACKING/qmypmnxxbvr/index.html (citing the harms from the long term trade war with China as a reason for the need to retain that market now).
159 See Jaclyn Diaz, GOP Virus Plan Backstops Businesses, Boosts Child-Care Aid, Bloomberg L. (July 27, 2020), https://news.bloomberglaw.com/business-and-practice/gop-virus-plan-backstops-businesses-boosts-child-care-aid?context=article-related.
160 See Y. Peter Kang, Red State AGs Lobby for COVID-19 Business Immunity, Law360 (Aug. 7, 2020), https://www.law360.com/foodbeverage/articles/1299527.
161 See Diaz, supra note 159.
162 SAFE TO WORK Act, S. 4317, 116th Cong. §§ 121–22 (2020); Billy House, McConnell Fight for Liability Shield a Key Hitch as Talks Stall, Bloomberg L. (Aug. 11, 2020), https://news.bloomberglaw.com/coronavirus/mcconnell-fight-for-liability-shield-a-key-hitch-as-talks-stall.
163 See Diaz, supra note 159; see also Robert Iafolla, Employers Get Major Protections in GOP Liability Shield Bill (1), Bloomberg L. (Aug. 3, 2020, 5:46 AM) (updated 12:20 PM), https://news.bloomberglaw.com/daily-labor-report/employers-get-major-protections-in-gop-liability-shield-bill.
164 Iafolla, supra note 163 (noting that the proposed bill would require a detailed record of potential exposures in the two weeks leading up to showing symptoms, provide for automatic appeals when a defendant’s motion to dismiss is denied, and allow businesses to sue over meritless demand letters).
165 Id.
166 See Y. Peter Kang, GOP Sets Sights on COVID-19 Biz Immunity in Relief Bill, Law360 (July 27, 2020), https://www.law360.com/articles/1295675.
167 See Chris Marr, Like State Efforts, Senate’s Virus Liability Limit’s No Cure-All, Bloomberg L. (July 16, 2020), https://news.bloomberglaw.com/daily-labor-report/like-state-efforts-senates-virus-liability-limits-no-cure-all.
168 See id.
169 Y. Peter Kang, Idaho Gives COVID-19 Civil Immunity to Businesses, Schools, Law360 (Aug. 28, 2020), https://www.law360.com/articles/1305141/idaho-gives-covid-19-civil-immunity-to-businesses-schools.
170 Id.
171 Brian E. Finch & Zachary M. Kessler, Senate Republicans Unveil Proposed COVID-19 Liability Shield, Pillsbury (July 29, 2020), https://www.pillsburylaw.com/en/news-and-insights/Covid-19-liability-shield.html.
172 See Kang, supra note 166.
173 See Marr, supra note 167.
174 Practical Law Commercial Transactions, Thomson Reuters, State Liability Shield Laws for Businesses Charts: COVID-19 Immunity: Overview (database updated Aug. 1, 2021), W-027-5361.
175 Chris Marr, Covid-19 Shield Laws Proliferate Even as Liability Suits Do Not, Bloomberg L. (June 8, 2021), https://news.bloomberglaw.com/daily-labor-report/covid-19-shield-laws-proliferate-even-as-liability-suits-do-not.
176 Twenty of the thirty states that have issued a liability shield have this as the standard of care required. The states are Alabama (Ala. Code § 6-5-790 to -799 (2021)); Alaska (H.R. 76, 32nd Leg., 1st Sess. (Alaska 2021)); Arizona (S. 1377, 55th Leg., 1st Sess. (Ariz. 2021)); Arkansas (Ark. Code Ann. §§ 16-120-1101 to -1106 (West 2021)); Florida (Fla. Stat. Ann. § 768.38 (West 2021)); Georgia (Ga. Code Ann. §§ 51-16-1 to -5 (West 2020)); Idaho (Idaho Code Ann. §§ 6-3401 to -3403 (West 2020)); Indiana (Ind. Code Ann. §§ 34-30-32-1 to -11 (West 2021)); Iowa (Iowa Code Ann. §§ 686D.1–.8 (West 2020)); Kentucky (Ky. Rev. Stat. Ann. § 39A.275 (West. 2021)); Louisiana (La. Stat. Ann. § 9:2800.25 (2020)); Montana (S. 65, 67th Leg., Reg. Sess. (Mont. 2021)); Nevada (Nev. Rev. Stat. Ann. §§ 41.810–.835 (West 2020)); North Carolina (N.C. Gen. Stat. Ann. §§ 99E-70 to -72 (West 2020)); Ohio (H.R. 606, 133rd Gen. Assemb., Reg. Sess. (Ohio 2020)); South Carolina (Act No. 99, 2021-2022 Gen. Assemb., 124th Sess. (S.C. 2021)); Tennessee (Tenn. Code Ann. §§ 29-34-801 to -802 (West 2020)); Utah (Utah Code Ann. § 78B-4-517 (West 2020)); Wisconsin (Wis. Stat. Ann. § 895.476 (West 2021)); and, Wyoming (Wyo. Stat. Ann. § 35-4-114 (West 2021)).
177 Gross Negligence, Legal Info. Inst., https://www.law.cornell.edu/wex/gross_negligence (last visited Aug. 25, 2021).
178 Id.
179 Four of the thirty states have adopted this standard, including Mississippi (Miss. Code Ann. §§ 11-71-1 to -13 (West 2020)); North Dakota (N.D. Cent. Code Ann. §§ 32-48-01 to -08 (West 2021)); South Dakota (S.D. Codified Laws §§ 21-68-1 to -6 (2021)); and, West Virginia (W. Va. Code Ann. §§ 55-19-1 to -19 (West 2021)).
180 Intentionally Law and Legal Definition, USLegal, https://definitions.uslegal.com/i/intentionally/ (last visited Aug. 25, 2021).
181 The four states that follow this system are Kansas (Kan. Stat. Ann. §§ 60-5501 to -5508 (West 2020)); Michigan (Mich. Comp. Laws Ann. §§ 691.1451–.1460 (West 2020)); Nebraska (L.B. 139, 107th Leg., 1st Sess. (Neb. 2021)); and, Oklahoma (Okla. Stat. Ann. tit. 76, § 111 (West 2020)).
182 Practical Law Commercial Transactions, Thomson Reuters, supra note 174.
183 S. 6, 87th Leg., 2d Sess. (Tex. 2021).
184 Kay, supra note 58 (noting that Florida, for example, has over one million pending cases in the trial courts, and Maine and Tennessee also have thousands of backlogged cases over the last ten months). For more information on each state’s court operation policy, see Court Operations During COVID-19: 50-State Resources, Justia, https://www.justia.com/covid-19/50-state-covid-19-resources/court-operations-during-covid-19-50-state-resources/ (July 2021). See also Jack Karp, Trial Alternatives Getting Fresh Look with COVID-19 Backlog, Law360 (Feb. 4, 2021), https://www.law360.com/foodbeverage/articles/1351450.
185 Benjamin v. JBS S.A., 516 F. Supp. 3d 463 (E.D. Pa. 2021).
186 This table represents data up until November 12, 2020, for wrongful death, public nuisance, and agency failures to declare emergency standards.
187 Todd Neeley, Meatpacker Worker Deaths Spark Lawsuits, Progressive Farmer (May 14, 2020), https://www.dtnpf.com/agriculture/web/ag/news/farm-life/article/2020/05/14/families-Covid-19-victims-allege.
188 Benjamin, 516 F. Supp. 3d 463.
189 Id. at 466–67.
190 Neeley, supra note 187; see also supra Table 1.
191 Neeley, supra note 187.
192 Id. (noting that “[b]ased upon information and belief, the culture at JBS Souderton resulted in workers coming to work sick for fear of losing their job if missing multiple days of work” and that “[d]uring the course and scope of [Dominguez’s] work, decedent was driving the forklift, and as his symptoms became evident, he was told to report to work and to keep at it—otherwise he would have been laid off”).
193 Benjamin, 516 F. Supp. 3d at 469. Specifically, the complaint alleges that JBS “failed to provide sufficient personal protective equipment,” “forced workers to work in close proximity,” “forced workers to use cramped and crowded work areas, break areas, restrooms, and hallways,” “discouraged workers from taking sick leave in a manner that had sick workers in fear of losing their jobs,” and “failed to properly provide testing and monitoring for individuals who may have been exposed to the virus that causes COVID-19.” Complaint - Civil Action at 4, Benjamin v. JBS S.A., No. 200500370 (Pa. Ct. Com. Pl. filed May 7, 2020); See Shook, Hardy & Bacon L.L.P., Family of Deceased Meatpacking Plant Worker Sues JBS for Alleged COVID-19 Negligence, Food & Beverage Litig. & Regul. Update (May 15, 2020) (quoting Complaint - Civil Action, supra), https://foodbeveragelitigationupdate.com/family-of-deceased-meatpacking-plant-worker-sues-jbs-for-alleged-Covid-19-negligence/.
194 Benjamin, 516 F. Supp. 3d at 467.
195 Matt Fair, Meatpacker Sued in 1st Virus-Related Death Case in Pa., Law360 (May 7, 2020), https://www.law360.com/articles/1271295.
196 Matthew Santoni, Worker’s Family Pushes to Keep Virus Death Suit in Pa. Court, Law360 (June 30, 2020), https://www.law360.com/foodbeverage/articles/1287881/worker-s-family-pushes-to-keep-virus-death-suit-in-pa-court.
197 Id. (citing Martin v. Lancaster Battery Co., 606 A.2d 444, 446 (Pa. 1992) (holding that a company lost its immunity under workers compensation law when it actively misled employees about workplace safety)).
198 The case will be heard in the Court of Common Pleas of Philadelphia County. Benjamin, 516 F. Supp. 3d at 476 (granting motion to remand).
199 Fatima Hussein, Tyson’s Trump-Made-Us-Do-It Claim Set for Eighth Circuit Test, Bloomberg L. (May 25, 2021), https://news.bloomberglaw.com/safety/tysons-president-made-us-do-it-claim-set-for-eighth-cir-test.
200 Plaintiffs’ Original Petition at 2–3, Requena v. Pilgrim’s Pride Corp., No. CV-00296-20-06 (Tex. Dist. Ct. June 9, 2020).
201 Id. at 4–5.
202 Id. at 4.
203 Id. at 5.
204 Fatima Hussein, Sued Over Covid-19, Companies Scramble for Federal Court Shelter, Bloomberg L. (July 20, 2020), https://news.bloomberglaw.com/daily-labor-report/sued-over-covid-19-companies-scramble-for-federal-court-shelter.
205 Id. (quoting the company’s July 2 notice of removal).
206 Id.
207 Stella M. Chávez, Family of Man Who Died of COVID-19 Suing Dallas Meat Plant, Kera News (May 5, 2020), https://www.keranews.org/post/family-man-who-died-Covid-19-suing-dallas-meat-plant.
208 Kevin Krause, Wife of Dallas Meat Plant Worker Who Died from Virus Sues Company, Claiming It Ignored Worker Safety, Dall. Morning News (May 5, 2020), https://www.dallasnews.com/business/local-companies/2020/05/05/wife-of-dallas-meat-plant-worker-who-died-from-virus-sues-company-claiming-it-ignored-worker-safety/.
209 Agreed Scheduling Order, Parra v. Quality Sausage Co., No. DC-20-06406 (Tex. Dist. Ct. Oct. 29, 2020).
210 Plaintiffs’ Original Petition at 4–5, Chavez v. Tyson Foods, Inc., No. 9:20-cv-00134 (E.D. Tex. dismissed Aug. 7, 2020).
211 Id. at 2; see also Rosie Manins, Tyson Hit with Another COVID-19 Death Suit in Texas, Law360 (June 16, 2020), https://www.law360.com/articles/1283346.
212 Id.
213 Plaintiffs’ Original Petition, supra note 210, at 5.
214 Michelle Casady, Tyson Says Suit Doesn’t Tie Worker’s COVID-19 Death to Plant, Law360 (July 31, 2020), https://www.law360.com/articles/1297505.
215 Jon Steingart, Tyson Worker’s Family Vows to Press ‘Stronger’ COVID Suit, Law360 (Aug. 10, 2020), https://www.law360.com/articles/1299875/tyson-worker-s-family-vows-to-press-stronger-covid-suit?copied=1.
216 Ryan J. Foley, Families of 3 Deceased Workers Sue Tyson over Iowa Outbreak, US News (June 25, 2020), https://www.usnews.com/news/politics/articles/2020-06-25/families-of-3-deceased-workers-sue-tyson-over-iowa-outbreak.
217 Id.
218 See Gallagher & Kirkland, supra note 43.
219 Specifically, “At least one worker at the facility vomited on the production line and management allowed him to continue working and return to work the next day.” Petition at Law and Demand for Jury Trial, supra note 8, at 9.
220 Fatima Hussein, Tyson Faces Virus Fraud Lawsuit from Families of Dead Workers, Bloomberg L. (June 26, 2020), https://news.bloomberglaw.com/safety/tyson-faces-virus-fraud-lawsuit-from-families-of-dead-workers?context=article-related.
221 Foley, supra note 216.
222 Hirtzer, supra note 10.
223 Ryan J. Foley, Tyson Fires 7 at Iowa Pork Plant After COVID Betting Inquiry, ABC News (Dec. 16, 2020), https://abcnews.go.com/Health/wireStory/tyson-facing-lawsuit-employee-Covid-19-death-74762451.
224 First Amended Complaint, Fernandez v. Tyson Foods, Inc., No. 6:20-cv-02079 (N.D. Iowa filed Nov. 11, 2020).
225 Fernandez v. Tyson Foods, Inc., Pub. Citizen, https://www.citizen.org/litigation/fernandez-v-tyson-foods-inc/ (last visited July 26, 2021).
226 First Amended Complaint, supra note 224.
227 Buljic v. Tyson Foods, Inc., No. 6:20-cv-02055 (N.D. Iowa July 27, 2020), appeal docketed, No. 21-1010 (8th Cir. Jan. 5, 2021); Fernandez v. Tyson Foods, Inc., 509 F. Supp. 3d 1064 (N.D. Iowa 2020), appeal docketed, No. 21-1012 (8th Cir. Jan. 5, 2021).
228 Order, Buljic v. Tyson Foods, Inc., No. 21-1010 (8th Cir. Feb. 8, 2021).
229 Id.
230 Melissa Angell, Tyson Asks 8th Circ. to Keep COVID-19 Suits in Fed. Court, Law360 (Feb. 23, 2021), https://www.law360.com/employment-authority/articles/1356961/tyson-asks-8th-circ-to-keep-covid-19-suits-in-fed-court.
231 Hussein, supra note 199.
232 Id. Interestingly, some legal scholars believe that Tyson will be opening themselves up to a host of civil rights claims if they are deemed to be federal actors. Id.
233 Order, Buljic v. Tyson Foods, Inc., No. 6:20-cv-02055 (N.D. Iowa Dec. 28, 2020).
234 Angell, supra note 230.
235 Hussein, supra note 199.
236 Colorado is one of the 18 states, plus the District of Columbia, to have signed on to the brief. Mike Curley, 19 AGs Urge 8th Circ. to Keep Tyson Virus Suit in State Court, Law360 (Apr. 13, 2021), https://www.law360.com/employment-authority/articles/1374561/19-ags-urge-8th-circ-to-keep-tyson-virus-suit-in-state-court.
237 Y. Peter Kang, 8th Circ. Tyson Case Could Streamline COVID-19 Suits, Law360 (Apr. 23, 2021), https://www.law360.com/articles/1378370/8th-circ-tyson-case-could-streamline-covid-19-suits.
238 Id.
239 Hussein, supra note 199.
240 Id.
241 Order, Everhard v. Tyson Foods, Inc., No. 5:21-cv-04002 (N.D. Iowa Feb. 9, 2021) (clarifying that the Everhard case is awaiting an answer from the 8th Circuit regarding jurisdiction before proceeding).
242 Noam Scheiber & Michael Corkery, Missouri Pork Plant Workers Say They Can’t Cover Mouths to Cough, N.Y. Times (Apr. 24, 2020), https://www.nytimes.com/2020/04/24/business/economy/coronavirus-smithfield-meat.html.
243 Complaint, supra note 55, at 3.
244 Id.
245 Valdivia & Margolies, supra note 59.
246 Complaint, supra note 55, at 13.
247 Id.
248 Rural Cmty. Workers All. v. Smithfield Foods, Inc., 459 F. Supp. 3d 1228, 1240–41 (W.D. Mo. 2020); see also Meat and Poultry Processing Workers and Employers, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/meat-poultry-processing-workers-employers.html (June 11, 2021).
249 Complaint for Injunctive Relief, Massey v. McDonald's Corp., No. 2020CH04247, 2020 WL 5700874 (Ill. Cir. Ct. June 24, 2020).
250 Complaint, Hernandez v. VES McDonald's, No. RG20064825 (Cal. Super. Ct. filed June 16, 2020).
251 Fight for $15 is a group advocating for a $15 minimum wage and unionization for McDonald’s employees. See About Us, Fight for $15, https://fightfor15.org/about-us/ (last visited Feb. 17, 2021).
252 Vin Gurrieri, COVID Suits Test ‘Public Nuisance’ Claim in Workplace Cases, Law360 (June 9, 2020), https://www.law360.com/articles/1281347/covid-suits-test-public-nuisance-claim-in-workplace-cases.
253 Id.
254 Gabi Jackson, Public Nuisance Lawsuits Against Employers Over COVID-19: What You Need to Know, Nat’l Sea Grant L. Ctr.: Blog (June 29, 2020), https://nsglc.olemiss.edu/blog/2020/jun/29/index.html.
255 Specifically, Judge Reilly says McDonald’s needs to strictly enforce their mask policy and retrain employees on proper social distancing procedures. She found that there would only be a slight hardship to the franchise and that workers have a right to a workplace free from exposure to the coronavirus. See Lauraann Wood, McDonald’s Told to Give Ill. Workers More Virus Protections, Law360 (June 24, 2020), https://www.law360.com/articles/1286329/mcdonald-s-told-to-give-ill-workers-more-virus-protections.
256 Y. Peter Kang, McDonald’s Franchise Hit with Suit Over COVID-19 Outbreak, Law360 (June 16, 2020), https://www.law360.com/articles/1283543.
257 Id.
258 Karen F. Tynan & Jennifer Yanni, California Judge Grants TRO Related to COVID-19 Risks at Fast-Food Restaurant, Ogletree Deakins (July 2, 2020), https://ogletree.com/insights/california-judge-grants-tro-related-to-covid-19-risks-at-fast-food-restaurant/.
259 Id.
260 Plaintiff’s Motion to Reconsider and Suggestions in Support at 2–3, Rural Cmty. Workers All. v. Smithfield Foods, Inc., No. 5:20-cv-06063 (W.D. Mo. filed June 2, 2020), https://food.publicjustice.net/wp-content/uploads/sites/3/2020/06/2020.06.03-Dkt-53-Pltfs-Mot-to-Reconsider.pdf (noting that 20—30 employees were quarantined in the week following the court’s decision showing clear imminence of harm.); see also Order Denying Motion for Reconsideration, Rural Cmty. Workers All. v. Smithfield Foods, Inc., No. 5:20-cv-06063 (W.D. Mo. July 14, 2020), https://food.publicjustice.net/wp-content/uploads/sites/3/2020/11/2020.07.14-Dkt-58-Order-Denying-Motion-for-Reconsideration.pdf.
261 Order Denying Motion for Reconsideration, supra note 260.
262 See Complaint Under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d-2000d-7; 7 C.F.R. §§ 15.1-15.12, Food Chain Workers All. v. Tyson Foods, Inc. (U.S.D.A. filed July 8, 2020); Jon Steingart, Tyson, JBS Accused of Putting Minority Workers at Virus Risk, Law360 (July 9, 2020), https://www.law360.com/articles/1290542/tyson-jbs-accused-of-putting-minority-workers-at-virus-risk. One of the groups bringing this lawsuit is the Rural Community Workers Alliance noted earlier for bringing suit against Smithfield in Missouri.
263 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241.
264 Complaint Under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d-2000d-7; 7 C.F.R. §§ 15.1-15.12, supra note 262.
265 Fatima Hussein & Michael Hirtzer, Tyson, JBS Hit with Minority Worker Exposure Complaint (1), Bloomberg L. (July 9, 2020, 1:11 PM) (updated 6:41 PM), https://news.bloomberglaw.com/safety/tyson-jbs-hit-with-complaint-for-minority-worker-virus-exposure.
266 See Complaint Under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d-2000d-7; 7 C.F.R. §§ 15.1-15.12, supra note 262; Steingart, supra note 262.
267 According to the Department of Labor, Black or African American, Latino or Hispanic, and Asian butchers and other meat processing employees make up only 60% of the workforce. Labor Force Statistics from the Current Population Survey, U.S. Bureau Lab. Stat., http://www.bls.gov/cps/cpsaat11.htm (Jan. 22, 2021).
268 Megan Durisin, Virus Can Travel 26 Feet at Cold Meat Plants with Stale Air, Bloomberg (July 23, 2020, 1:23 PM) (updated 3:13 PM), https://www.bloomberg.com/news/articles/2020-07-23/virus-can-jump-26-feet-at-cold-meat-plants-filled-with-stale-air.
269 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241.
270 Erin Mulvaney, Minorities on Pandemic Frontlines Take Race Bias Claims to Court, Bloomberg L. (Nov. 24, 2020), https://news.bloomberglaw.com/class-action/minorities-on-pandemic-frontlines-take-race-bias-claims-to-court.
271 Id.
272 Id.
273 Emergency Petition for a Writ of Mandamus, and Request for Expedited Briefing and Disposition, In re Am. Fed’n of Lab. & Cong. of Indus. Orgs., No. 20-01158 (D.C. Cir. filed May 18, 2020); Smithfield Packaged Meats Corp. v. U.S. Dep’t of Lab., Occupational Safety & Health Admin., No. 4:20-mc-00018 (D.S.D. dismissed July 29, 2020); Complaint for Declaratory and Injunctive Relief, United Food & Com. Workers Union Local No. 227 v. U.S. Dep’t of Agric., No. 1:20-cv-02045 (D.D.C. filed July 28, 2020).
274 Emergency Petition for a Writ of Mandamus, and Request for Expedited Briefing and Disposition, supra note 173, at 1—2.
275 Fatima Hussein, AFL-CIO Sues OSHA to Force Temporary Worker-Safety Standard (2), Bloomberg L. (May 18, 2020, 10:26 AM) (updated 7:11 PM), https://news.bloomberglaw.com/safety/afl-cio-sues-osha-to-force-temporary-worker-safety-standard.
276 Id. (quoting Richard Trumka, AFL-CIO President).
277 Emergency Petition for a Writ of Mandamus, and Request for Expedited Briefing and Disposition, supra note 273, at 5 (citations omitted).
278 Harper Neidig, Appeals Court Rejects AFL-CIO Lawsuit Over Lack of COVID-19 Labor Protections, Hill (June 11, 2020), https://thehill.com/regulation/court-battles/502249-appeals-court-rejects-afl-cio-lawsuit-over-lack-of-Covid-19-labor.
279 In re Am. Fed’n of Lab. & Cong. of Indus. Orgs., No. 20-01158, 2020 U.S. App. LEXIS 23837 (D.C. Cir. July 28, 2020) (denying petition for rehearing en banc).
280 Food Safety and Worker Advocacy Organizations File Legal Action to Implement Mandatory Worker Safety Standards at Meatpacking Facilities, Ctr. for Food Safety (May 5, 2020), https://www.centerforfoodsafety.org/press-releases/6009/food-safety-and-worker-advocacy-organizations-file-legal-action-to-implement-mandatory-worker-safety-standards-at-meatpacking-facilities.
281 Id.
282 See Rulemaking Petition to the United States Department of Labor Occupational Safety and Health Administration at 3, Ctr. for Food Safety (May 4, 2020), https://www.centerforfoodsafety.org/files/2020-05-04-osha-ets-petition_58890.pdf.
283 The workers are seeking anonymity out of fear of retaliation. It will be up to the court whether to allow this. Doe I v. Scalia, No. 3:20-cv-01260, 2021 WL 1197669 (M.D. Pa. Mar. 30, 2021), appeal docketed, No. 21-2057 (3d Cir. June 1, 2021). Fatima Hussein, OSHA Asked to Inspect Meat Processing Plant for Virus Violations, Bloomberg L. (July 23, 2020), https://news.bloomberglaw.com/safety/osha-asked-to-inspect-meat-processing-plant-for-virus-violations.
284 Craig Clough, Pa. Meatpackers Sue OSHA to Compel COVID-19 Safety, Law360 (July 23, 2020), https://www.law360.com/foodbeverage/articles/1294682.
285 Id. (reporting that workers claim over 50% of the employees became sick).
286 Id.
287 Id.; Complaint and Emergency Petition for Emergency Mandamus Relief, supra note 56, at 4.
288 Employees say that the dangers could be abated if Maid-Rite “will simply assume the costs” such as slowing the production line to allow for more spacing. Complaint and Emergency Petition for Emergency Mandamus Relief, supra note 56, at 3.
289 Id. at 6–7.
290 Clare Roth, U.S. Inspector Called Ahead of Meat Plant Visit, to Be Safe, Bloomberg (Aug. 14, 2020) (updated Aug. 15, 2020), https://www.bloomberg.com/news/articles/2020-08-15/u-s-inspector-called-ahead-of-meat-plant-visit-just-to-be-safe.
291 Bryce Covert, OSHA Blamed for Going AWOL During COVID-19, FairWarning (Oct. 6, 2020), https://www.fairwarning.org/2020/10/oshas-business-friendly-approach-fails-to-protect-workers-threatened-by-Covid-19-critics-say/.
292 Fatima Hussein, DOL Warns of Worker Safety Case ‘Avalanche’ in Maid-Rite Lawsuit, Bloomberg L. (July 29, 2020), https://news.bloomberglaw.com/daily-labor-report/dol-warns-of-worker-safety-case-avalanche-in-maid-rite-lawsuit.
293 Robert Burnson, Meat Plant Cleared by Agency Under Fire for Lax Virus Policing, Bloomberg L. (Dec. 2, 2020), https://news.bloomberglaw.com/safety/meat-plant-cleared-by-agency-under-fire-for-lax-virus-policing?context=article-related.
294 Id.
295 Suggestion of Mootness, Doe I v. Scalia, No. 3:20-cv-01260, 2021 WL 1197669 (M.D. Pa. Mar. 30, 2021), appeal docketed, No. 21-2057 (3d Cir. June 1, 2021).
296 Response to Letter from Occupational Health and Safety Administration at 1, Doe I, 2021 WL 1197669.
297 Fatima Hussein, No Covid Citations Against Maid-Rite Moots Safety Suit, DOL Says, Bloomberg L. (Jan. 13, 2021), https://news.bloomberglaw.com/safety/no-covid-citations-against-maid-rite-moots-safety-suit-dol-says (quoting OSHA’s suggestion of mootness letter).
298 Id.
299 Emergency Temporary Standard - Infectious Disease Prevention: Sars-Cov-2 Virus that Causes Covid-19, 16 Va. Admin. Code §§ 25-220-10 to -90 (2020) (amended 2021).
300 Or. Admin. R. 437-001-0744 (2020) (amended 2021) (addressing workplace risks caused by COVID-19).
301 Mich. Admin Code r. 408E-2.2020 (2020) (amended 2021).
302 All three states are under State OSHA plans. State Plans, U.S. Dep’t Lab., https://www.osha.gov/stateplans/ (last visited Nov. 15, 2021).
303 Deborah Berkowitz, Which States and Cities Have Adopted Comprehensive COVID-19 Worker Protections?, Nat’l Emp. L. Project: Blog (June 9, 2021), https://www.nelp.org/blog/which-states-cities-have-adopted-comprehensive-covid-19-worker-protections/; see also 16 Va. Admin. Code §§ 25-220-10 to -90.
304 These states include California, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Virginia, and Washington. Berkowitz, supra note 303.
305 Id.
306 Jonathan Crotty, Labor Groups Petition North Carolina for COVID-19 Workplace Safety Standard, JD Supra (Nov. 6, 2020), https://www.jdsupra.com/legalnews/labor-groups-petition-north-carolina-81859/.
307 Id.
308 Julia Hawes, Workers’ Rights Advocates Petition NC Department of Labor to Adopt a Rule that Would Protect Workers During COVID-19 Pandemic, N.C. Just. Ctr. (Oct. 12, 2020), https://www.ncjustice.org/workers-rights-advocates-petition-nc-department-of-labor-to-adopt-a-rule-that-would-protect-workers-during-Covid-19-pandemic/.
309 Id.
310 Id.
311 Petition for Judicial Review, Declaratory Judgment and Injunctive Relief, Familias Unidas Por La Justicia v. Wash. State Dep’t. of Lab. & Indus., No. 20-2-01556-34 (Wash. Super. Ct. June 4, 2020).
312 Daniel Wiessner, Unions Demand Wash. Labor and Health Agencies Protect Farmworkers from COVID-19, Reuters (Apr. 17, 2020), https://www.reuters.com/article/labor-farms/unions-demand-wash-labor-and-health-agencies-protect-farmworkers-from-covid-19-idUSL1N2C51D3.
313 Id.
314 Id.; see also Jocelyn Sherman, Farm Worker Unions File Emergency Petition for Judicial Review, Citing Urgent Need for ‘Clear and Decisive Action’ to Protect WA Farm Workers, United Farm Workers (Apr. 16, 2020), https://ufw.org/lnicividwa/.
315 See Gabe Guarente, Farmworkers Unions Sue Washington State Over Lack of Adequate COVID-19 Protections, Seattle Eater (Apr. 17, 2020), https://seattle.eater.com/2020/4/17/21224996/farmworkers-unions-sue-washington-state-Covid-19-protections.
316 Hailey Konnath, Tyson Hit with Investor Suit Over Lackluster Virus Response, Law360 (Feb. 2, 2021), https://www.law360.com/articles/1351425/tyson-hit-with-investor-suit-over-lackluster-virus-response.
317 Class Action Complaint for Violations of the Federal Securities Laws at 5–9, Guo v. Tyson Foods, Inc., No. 1:21-cv-00552 (E.D.N.Y. Feb. 2, 2021).
318 Verified Shareholder Derivative Complaint at 2–3, Gervat v. Tyson Foods, Inc., No. 1:21-cv-00730 (E.D.N.Y. Feb. 10, 2021).
319 Id. at 4, 34; see also Tyson Foods Market Cap, YCharts, https://ycharts.com/companies/TSN/market_cap (last visited July 25, 2021) (showing market cap dropped from $25.46 Billion on Dec. 14, 2020, to $24.90 Billion on Dec. 15, 2020).
320 Samuels v. Cargill, Inc. (In re DPP Beef Litig.), Ch. 7 Case No. 0:20-cv-01319 (D. Minn. filed June 6, 2020).
321 Class Action Complaint at 3–4, In re DPP Beef Litig., No. 0:20-cv-01319.
322 Chris Marr & Fatima Hussein, Amid Virus Shield Laws and Workers’ Comp, Lawyers Seek Gaps (1), Bloomberg L. (Feb. 18, 2021. 5:31 AM) (updated 10:20 AM), https://news.bloomberglaw.com/daily-labor-report/virus-liability-shields-can-be-redundant-making-exceptions-key.
323 A Quick Guide to Workers’ Compensation in Texas, Employers, https://www.employers.com/blog/2019/a-quick-guide-to-workers-compensation-in-texas/ (last visited Sept. 1, 2021).
324 Aliza Karetnick et al., Insight: Doctrine of Primary Jurisdiction–an Ace for Dismissing Covid-19 Suits?, Bloomberg L. (June 11, 2020), https://news.bloomberglaw.com/daily-labor-report/insight-doctrine-of-primary-jurisdiction-an-ace-for-dismissing-covid-19-suits.
325 Id.
326 Id.
327 See Rural Cmty. Workers All. v. Smithfield Foods, Inc., 459 F. Supp. 3d 1228, 1241 (2020) (dismissing without prejudice so plaintiffs can seek relief for the issue falling “squarely within OSHA/USDA’s jurisdiction”).
328 Id.
329 Rural Cmty. Workers All., 459 F. Supp. 3d at 1240–41.
330 Id.
331 Id. at 1241.
332 Id.
333 Compare Motion to Dismiss of Defendants JBS USA Food Company, JBS USA Holdings, Inc., JBS Souderton, Inc., and Pilgrim’s Pride Corporation Pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) at 21–27, Benjamin v. JBS S.A., 516 F. Supp. 3d 463 (E.D. Pa. 2021) (No. 2:20-cv-02594) (arguing for stay or dismissal under primary jurisdiction doctrine), with Benjamin, 516 F. Supp. 3d 463 (remanding to state court and making no mention of primary jurisdiction doctrine).
334 Baykeeper v. NL Indus., Inc., 660 F.3d 686, 691 (3d Cir. 2011).
335 Motion to Dismiss of Defendants JBS USA Food Company, JBS USA Holdings, Inc., JBS Souderton, Inc., and Pilgrim’s Pride Corporation Pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6), supra note 333, at 21–27.
336 Marr & Hussein, supra note 322.
337 Id.
338 Petition at Law and Demand for Jury Trial, supra note 8, at 9; S. File 2338, 88th Gen. Assemb., 2d Sess. (Iowa. 2020) (creating a broad liability shield that has an exemption for reckless disregard or actual malice and that was passed on June 18, 2020, retroactive to January 1, 2020).
339 Hussein, supra note 204.
340 Y. Peter Kang, Meatpacking Co. Can’t Keep Virus Death Suit in Federal Court, Law360 (Feb. 1, 2021), https://www.law360.com/employment-authority/articles/1350258/meatpacking-co-can-t-keep-virus-death-suit-in-federal-court.
341 Exec. Order No. 13,999, 86 Fed. Reg. 7,211 (Jan. 21, 2021).
342 Bruce Rolfsen, Biden’s OSHA Virus Plan Promises Frontline Enforcement Boost, Bloomberg L. (Feb. 2, 2021), https://news.bloomberglaw.com/safety/bidens-osha-virus-plan-promises-frontline-enforcement-boost.
343 Fatima Hussein, OSHA Virus Emergency Rule Looms As Potent Weapon for Litigation, Bloomberg L. (Feb. 12, 2021), https://news.bloomberglaw.com/daily-labor-report/osha-virus-emergency-rule-looms-as-potent-weapon-for-litigation.
344 John F. Martin & Arthur G. Sapper, President Biden Issues Executive Order Promising Fast Movement by OSHA on COVID-19—Can It Deliver?, Ogletree Deakins (Jan. 22, 2021), https://ogletree.com/insights/president-biden-issues-executive-order-promising-fast-movement-by-osha-on-covid-19-can-it-deliver/.
345 U.S. Dep’t of Lab., Occupational Safety & Health Admin., DIR 2021-01 (CPL-03), National Emphasis Program – Coronavirus Disease 2019 (COVID-19) (2021), https://www.osha.gov/sites/default/files/enforcement/directives/DIR_2021-01_CPL-03.pdf.
346 Nicholas Hulse & Travis Vance, OSHA Signals More COVID-19 Inspections Are Coming: 5 Steps for Employers to Prepare for the National Emphasis Program, JD Supra (Mar. 15, 2021), https://www.jdsupra.com/legalnews/osha-signals-more-covid-19-inspections-9086971/.
347 Memorandum from Patrick J. Kapust, Acting Dir., Directorate of Enf’t Programs, Occupational Safety & Health Admin., to Reg’l Adm’rs, State Plan Designees, Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) (2021), https://www.osha.gov/memos/2021-03-12/updated-interim-enforcement-response-plan-coronavirus-disease-2019-covid-19.
348 E. Phileda Tennant, OSHA’s National Emphasis Program for COVID-19 Inspections: Things to Look For, JD Supra (Apr. 9, 2021), https://www.jdsupra.com/legalnews/osha-s-national-emphasis-program-for-1651430/.
349 Id.
350 Id.
351 Memorandum from Patrick J. Kapust, Acting Dir., Directorate of Enf’t Programs, Occupational Safety & Health Admin., supra note 347.
352 Hulse & Vance, supra note 346.
353 Id.
354 Robert Foster & Ashley Hirano, OSHA Adopts New COVID-19 National Emphasis Program to Increase Its Enforcement Efforts, Sheppard Mullin: Lab. & Emp. L. Blog (Mar. 22, 2021), https://www.laboremploymentlawblog.com/2021/03/articles/coronavirus/osha-nep-enforcement-efforts/.
355 Id.
356 Josh Funk, Thousands of Meatpacking Workers to Be Vaccinated this Week, AP News (Mar. 1, 2021), https://apnews.com/article/iowa-coronavirus-pandemic-waterloo-0c47b2fbe8f9919753c0d4b181ca15be (noting that the United Food and Commercial Workers International Union and the North American Meat Institute pressured the governors of all 50 states to put meat and poultry workers at a high priority for vaccinations; Iowa has stated that plant workers will be eligible for the vaccine as soon as February 1, 2021).
357 Martin & Sapper, supra note 344.
358 Id.
359 See id.
360 Bruce Rolfsen, Biden Calls for Tougher OSHA Covid-19 Enforcement, Signs Order (1), Bloomberg L. (Jan. 21, 2021, 4:06 PM) (updated 6:12 PM), https://news.bloomberglaw.com/daily-labor-report/biden-calls-for-tougher-osha-covid-19-enforcement-signs-order.
361 Id.
362 Berkowitz, supra note 303.
363 Id.
364 Id.
365 Id.
366 Id.
367 Bruce Rolfsen, Virginia Adopts First Permanent Workplace Virus Rule in U.S. (1), Bloomberg L. (Jan. 13, 2021, 5:43 PM) (updated 6:52 PM), https://news.bloomberglaw.com/safety/virginia-adopts-first-permanent-workplace-virus-rule-in-u-s; see also Bruce Rolfsen, Virginia’s First-in-U.S. Worker Virus Safety Rule Takes Effect, Bloomberg L. (July 27, 2020), https://news.bloomberglaw.com/safety/virginias-first-in-u-s-worker-virus-safety-rule-takes-effect.
368 Courtney Malveaux, Virginia Passes Permanent Standard on COVID-19, EHS Today (Jan. 19, 2021), https://www.ehstoday.com/covid19/article/21152614/virginia-passes-permanent-standard-on-covid19.
369 Id.
370 Hussein, supra note 343.
371 Id.
372 Dori Goldstein, Analysis: OSHA Emergency Covid Rule Imminent, but Vulnerable, Bloomberg L. (Apr. 29, 2021), https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-osha-emergency-covid-rule-imminent-but-vulnerable.
373 Id.
374 Id.
375 See 29 C.F.R. §§ 1910.502, .504, .505, .509 (2021).
376 See Goldstein, supra note 372.
377 See, e.g., Bruce Rolfsen, Emergency OSHA Covid Rule Drawn Out by More White House Meetings, Bloomberg L. (May 7, 2021), https://news.bloomberglaw.com/daily-labor-report/emergency-osha-covid-rule-drawn-out-by-more-white-house-meetings.
378 Id.
379 See Brooke C. Bahlinger & Carrie Hoffman, A Shield for Employers: State COVID-19 Indemnity Laws, Foley (June 22, 2020), https://www.foley.com/en/insights/publications/2020/06/shield-employers-state-covid-19-indemnity-laws.
380 See Josh Cunningham, COVID-19: Workers’ Compensation, Nat’l Conf. State Legislatures (Dec. 9, 2020), https://www.ncsl.org/research/labor-and-employment/covid-19-workers-compensation.aspx.
381 See id.
382 See id.
383 State Action on Coronavirus, Nat’l Conf. State Legislatures, https://www.ncsl.org/research/health/state-action-on-coronavirus-covid-19.aspx (Sept. 17, 2021) (compiling user-manipulated database of state COVID-19 legislation). This consists of: Idaho, Iowa, Georgia, Kansas, Mississippi, Nevada and Oklahoma. Kansas had proposed legislation but it died in House Committees. See Orders and Other Authority or Guidance to Provide Workers’ Compensation (WC) Coverage for COVID-19, Ogletree Deakins, https://ogletree.com/app/uploads/covid-19/COVID-19-Workers-Compensation-Coverage.pdf?Version=12 (June 14, 2021) (compiling states’ COVID-19-related amendments to workers’ compensation and other laws). See generally Covert, supra note 117; Melissa Bailey & Christina Jewett, Families of Health Workers Killed by COVID Fight for Denied Workers’ Comp Benefits, KHN (July 13, 2020), https://khn.org/news/adding-to-covid-stress-families-of-health-workers-fight-for-denied-workers-comp-benefits/.
384 Cal. Exec. Order No. 62-20 (May 6, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20.pdf.
385 S. 1159, 2019-2020 Reg. Sess. § 2 (Cal. 2020).
386 Id.
387 This was the day Governor Newsom issued Executive Order N-33-20 directing all residents to stay at home. See Cal. Exec. Order No. 33-20 (Mar. 19, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-EO-N-33-20-COVID-19-HEALTH-ORDER.pdf.
388 Cal. Exec. Order No. 62-20 (May 6, 2020).
389 Cal. Lab. Code §§ 3212.86–.88 (West 2020).
390 Orders and Other Authority or Guidance to Provide Workers’ Compensation (WC) Coverage for COVID-19, supra note 383.
391 Id.