Reprinted with permission from ProPublica
Frustrated by the lack of response to their complaint of the “imminent danger" posed by COVID-19, three meatpacking workers at the Maid-Rite Specialty Foods plant outside of Scranton, Pennsylvania, took the unusual step Wednesday of filing a lawsuit against the Occupational Safety and Health Administration and Labor Secretary Eugene Scalia.
The lawsuit, filed in a Pennsylvania federal court, accuses the government of failing to protect essential workers from dangerous conditions that could expose them to the coronavirus. It relies on a rarely used provision of the Occupational Safety and Health Act that allows workers to sue the secretary of labor for “arbitrarily or capriciously" failing to counteract imminent dangers.
On May 19, the Maid-Rite workers had turned to a Pennsylvania organization called Justice at Work to help them file an anonymous complaint with OSHA that detailed the lack of protections at the plant and described how they were required to work elbow-to-elbow with their co-workers on the production line.
Their complaint followed a similar report from another Maid-Rite employee in early April, which the workers weren't aware of at the time.
The three workers followed up on their May complaint with calls to OSHA officials, as well as letters and urgent updates with detailed descriptions of their working conditions. They'd only been given masks three times. They have to use crowded bathrooms to wash their hands.
They were now taking the government to court, the lawsuit said, because they “cannot wait any longer for OSHA to act."
Although the lawsuit focuses on the conditions at Maid-Rite, it also argues that OSHA's failure to respond effectively to workers' COVID-19 concerns is part of a larger pattern. Liz Chacko, an attorney and the deputy director of Justice at Work, said the case illustrates the extent to which meatpacking workers feel abandoned in the wake of COVID-19. “Our clients have been failed twice — by their employer first and then by OSHA because OSHA is charged with protecting workers in this country," she said.
In an email, a Department of Labor spokesperson declined to comment on the lawsuit but said OSHA opened an inspection with Maid-Rite Specialty Foods on June 2 and has six months to complete it. No further details will be publicly available until the inspection is complete, the spokesperson said.
Maid-Rite has not yet responded to a request for comment. In the company's response to the first worker's OSHA complaint, it said, “Maid-Rite places a strong emphasis on workplace safety and has taken the threat posed by COVID-19 very seriously."
As the pandemic has unfolded, meatpacking plants have emerged, along with hospitals and nursing homes, as hot spots for COVID-19. To date, more than 33,000 coronavirus cases have been tied to meat and poultry plants, and at least 132 meatpacking workers have died, according to a ProPublica review of government data, public records and news reports.
ProPublica could not determine if workers had been infected with the coronavirus at Maid-Rite. Court documents say two of the workers who filed suit have contracted COVID-19. Pennsylvania's Health Department said it does not release information on specific locations.
ProPublica has previously reported that despite receiving thousands of complaints, OSHA has not prioritized essential workers like meatpackers in its COVID-19 enforcement efforts. Public health departments across the country have found themselves overwhelmed by the flood of cases linked to the meat industry, which has sometimes stymied the efforts of local officials to curb the spread of the virus.
In response to what they see as OSHA's weak response to what some have called the greatest worker safety crisis in the agency's history, workers have sued the plants to compel reforms and turned to the courts to pursue temporary regulations. Unions like the United Food and Commercial Workers have tried to negotiate for improved safety measures, and some state and local officials have issued workplace safety protections of their own.
The Maid-Rite lawsuit is the latest effort by worker advocates to push for enhanced pandemic safeguards in the meat and poultry processing plants.
The Pennsylvania facility had, in fact, been on OSHA's radar since April 9 when the agency received an anonymous complaint from a worker there.
“About half the plant is out sick," a Maid-Rite worker reported, according to agency records. The plant was hiring more people “and not taking care of the problem," the worker said. People were coming and going and getting sick, and the company was “not cleaning, not taking precautions of a pandemic illness."
“I'm scared to go to work everyday," the worker said, noting she was given a mask for the first time on April 9. “It's sad and scary. I'm sorry."
OSHA responded by writing a letter to Maid-Rite, which produces frozen meat products for schools and health care facilities. The agency asked the plant to look into the complaint and report back.
Within a week, the company sent a letter and supporting documents to OSHA, explaining that 6-foot physical distancing wasn't possible on the production line, but it had given masks to its workers, staggered breaks and done deep cleanings at the facility.
With that, OSHA closed out the case.
More than a month later, the three Maid-Rite workers who filed suit against OSHA submitted their complaint to the agency.
In their communications with OSHA, the workers detailed how they labored so close together on the processing line that their elbows bumped and other workers stood 3 feet across from them.
They said that the company's strict attendance policy — six absences and you're out — remained in place during the pandemic, along with an attendance bonus, which public health experts say encourages people to work while sick.
The workers filed the complaint and lawsuit anonymously because they were concerned about retaliation from Maid-Rite, and they declined to speak to reporters.
Formal complaints like those from the Maid-Rite workers are meant to spur OSHA into action because they allege imminent danger at a job or a violation of workplace safety laws. OSHA typically responds by either conducting an inspection or notifying the worker to explain that their claim doesn't qualify as a health and safety emergency.
In the case of Maid-Rite, the workers say OSHA did neither.
The agency instead sent another letter to the company explaining that it did not plan to do an on-site inspection and requesting the plant “immediately investigate the alleged concerns and make any necessary corrections or modifications." Later, according to the lawsuit, it told the workers' attorney by phone that it was not treating any COVID-19 complaints as imminent danger complaints.
The workers, through their attorneys, said that as of this week, the working conditions remain the same as when they first contacted OSHA two months ago.
“They hesitated to come forward because their job is a lifeline for them to support their families," Chacko said. “There's a lot of frustration that they took on what they see as a huge risk by coming forward and, so far, there have been no changes."
Battling back transmission has been an ongoing challenge for the meat and poultry industry, where hundreds of workers debone chickens or pack ground hamburger side-by-side.
As the pandemic grew in scope, companies like Smithfield and Tyson installed plexiglass barriers and provided masks and face shields to workers.
But these measures haven't stopped COVID-19 cases from continuing to erupt at meatpacking plants, which vary from big multinational operators to smaller independent plants. Meanwhile, the federal agencies charged with protecting worker health and safety have offered only nonbinding recommendations. In their guidelines for the meatpacking industry, OSHA and the Centers for Disease Control and Prevention have recommended a variety of measures, including providing masks to employees, spacing out workers on the processing line and installing plexiglass barriers between them.
But OSHA has also made it clear that these guidelines are recommendations, not mandates. The agency promotes strategies that allow for physical distancing — but only when it's deemed feasible by the employer.
And following President Donald Trump's deployment of the Defense Production Act in late April to keep meat plants open, OSHA told meat industry employers that companies that make a good-faith effort to follow its guidance were unlikely to face penalties: “OSHA does not anticipate citing employers that adhere to the Joint Meat Processing Guidance," according to an April 28 statement from Kate O'Scannlain, the Labor Department's top attorney, and Loren Sweatt, the head of OSHA.
As a result, OSHA's enforcement strategy for COVID-19 has largely consisted of responding to non-health care worker complaints in a way that's familiar to the Maid-Rite workers — by sending companies a fax, letter or email asking them to investigate and make any necessary improvements.
David Michaels, who ran OSHA during the Obama administration, and members of Congress on both sides of the aisle, have called for OSHA to provide more clarity by issuing an emergency standard for policing COVID-19 measures in the workplace. In late May, the AFL-CIO sued OSHA in federal court to attempt to compel the agency to create an emergency standard. The union lost.
Though workers like those at Maid-Rite said they are disheartened by the pace and opacity of OSHA's response to their COVID-19 complaint, inspectors have, in fact, visited several meatpacking facilities to examine whether workers are being protected from the disease.
In some cases, the agency has faced pushback. After an April 20 inspection of Smithfield's Sioux Falls, South Dakota, plant, the company went to court to contest the agency's request for information related to its handling of COVID-19.
Some of OSHA's COVID-19 inspections have been closed without any action, but others — such as inspections at Old Trapper Smoked Products in Oregon and a Pilgrim's Pride plant in Minnesota — have resulted in penalties for failing to provide a safe workplace. The citations are being contested by the companies.
Pilgrim's spokesman Cameron Bruett said, “We believe we are in compliance with all guidance as provided by the CDC." Old Trapper did not respond to requests for comment.
While hospitals and nursing homes have been the biggest source of COVID-19 complaints to OSHA, the agency has opened 20 physical inspections in meatpacking plants so far — a higher rate than other industries, according to a ProPublica analysis. But the majority of the more than 200 COVID-19 complaints from meat and poultry workers nationwide have resulted in fax-and-letter inspections, with 72% of those complaints closed without a physical inspection.
George Pauley, a Department of Agriculture meat inspector in the Northeast region, which covers New York, New Jersey and Pennsylvania, said that he is not aware of any in-person OSHA inspections in his area, even though some meatpacking facilities still have not adopted even the most basic COVID-19 mitigation measures such as requiring and providing face masks.
“We can do better than what we are doing, which in many cases is not much," said Pauley, the Northeast Council president of the American Federation of Government Employees.
He thinks clearer and more consistent direction from agencies like OSHA and the USDA would spark improvements at meat and poultry plants. “If there's a will, there's a way," he said. “If you give them a challenge, they will rise to that challenge. Right now, there's no mandate they do anything, so there's no incentive."
Some workers have turned to state and local policymakers, creating a patchwork of regulations across the country. In Michigan, for example, a July 9 executive order requires meat and poultry plants to follow social distancing protocols on the processing line and provide face coverings to workers. The Pennsylvania Department of Health has ordered workplaces to stagger shifts and breaks to and distance its workers — which the Maid-Rite facility should be abiding by.
This month, Virginia became the first to approve an emergency COVID-19 worker protection standard through its state labor agency. The Richmond-based Legal Aid Justice Center filed a petition for the standard in April after poultry workers came to them with worries about the lack of precautions at the chicken plants.
“States like Virginia were asked to step in to fill the void due to OSHA merely having recommendations versus requirements, a long-standing issue that got worse during COVID," said Jason B. Yarashes, an attorney with the center.
The three Maid-Rite workers who sued Scalia and OSHA are known in court documents as Jane Doe I, II and III. The women spend about eight hours a day packing raw hamburger and earn $10 to $13 an hour.
Chacko, the Justice at Work attorney, said that while physical strain and injury is commonplace in meat processing work, COVID-19 has created acute alarm for the Maid-Rite workers. “With COVID, they say that the danger is so much more real and severe, and now going into work feels like they are putting their lives on the line," she said.
In early June, OSHA opened an inspection at the facility related to COVID-19, which is still ongoing, but it's unclear if it will include a physical inspection. The agency has declined to tell the workers or their lawyers whether OSHA inspectors had visited the plant or whether the inspection is related to their complaint.
In late June, lawyers for the workers sent another letter to OSHA to say that they “continue to face an imminent danger of contraction of COVID-19 due to the company's failure to implement adequate safety measures, specifically measures provided in CDC-OSHA joint guidance. OSHA has failed to adequately enforce this guidance and to protect workers at Maid-Rite."
Chacko said that at this point, filing a lawsuit against the agency was the next logical step. “It seemed like the only option, honestly," she said.
Meanwhile, in early July, OSHA began distributing posters that tout “ 9 Steps to Reducing Worker Exposure to COVID-19 in Meat, Poultry, and Pork Processing and Packaging Facilities" in 17 languages, a fraction of the languages spoken in the plants.
In addition to reiterating the importance of social distancing (Step No. 2) and using protective equipment (Step No. 7), the poster instructs workers to (Step No. 8) “report any safety and health concerns to your supervisor, or to OSHA."
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