Clyburn: Why have OSHA, meatpackers failed to protect workers from Covid-19?

Taken together, the four letters appear to seek answers to an unresolved mystery: Why have the Covid-related fines issued by OSHA so far been so paltry? And how exactly did the agency make its determination to seek only five-figure financial penalties, amounts that critics say are nominal considering the unprecedented outbreaks of disease? 

To readers of The Counter, these questions won’t be new. In July, Senators Elizabeth Warren of Massachusetts and Cory Booker of New Jersey released the findings of their own investigation into Tyson Foods, JBS USA, Cargil, and Smithfield Foods, though their political party was not yet in the majority, and didn’t wield the investigative powers granted to committee chairs.

As part of their findings, Warren and Booker wrote that “The Covid-19 pandemic has made it painfully clear that these giant meatpackers can use their power to exploit their workers for profit.” The investigation included letters of inquiry and demands for records similar to Clyburn’s, in response to which the senators received few specifics from the companies.

And in November, as part of an investigation into a fatal Covid-19 outbreak at One World Beef, one of California’s largest slaughterhouses, Counter contributors Nick Roberts and Rosa Amanda Tuirán provided detailed context on OSHA’s lax enforcement of meatpackers during the pandemic. Specifically, the piece made the case that the general duty clause—the legal tool federal OSHA has so far relied on to penalize meatpackers for failing to prevent Covid-19 outbreaks—was simply not up to the job. 

After all, that clause is part of a 1970 law that requires all workplaces to remain “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” It’s a legal catchall stipulating that all workplaces, regardless of industry, must be generally safe. But as a tool for protecting workers in the midst of a raging pandemic, it has proved to be woefully inadequate. 

“This approach means that meatpacking facilities operate in a tenuous kind of legal limbo,” Roberts and Tuirán wrote. “They must keep their employees generally safe. But they are not required to take measures that would protect workers from Covid-19 specifically. As long as they can strike that delicate balance, meatpacking companies are permitted to respond to the pandemic’s dangers however they like.” 

Representative Clyburn would seem to agree. In his letter to OSHA, he points out that this use of the general duty clause led to extremely low fines, citing the example of the Sioux Falls, South Dakota Smithfield plant where nearly 1,300 employees were sickened and four died. Clyburn points out that the $13,494 fine Smithfield received for one violation of the general duty clause at that plant amounted to less than $11 per illness, or less than $3,400 per preventable death—jarring numbers previously pointed out by The Counter in its investigation. 

By demanding that OSHA preserve all documents “related to training and guidance OSHA provides to inspectors to identify a violation of the general duty clause by an employer,” it would seem the Subcommittee wants to know more about why this low-level legal remedy was pursued, and not something more in step with the scale of the problem. As our investigation points out, OSHA has declined to use all the options at its disposal, including setting an emergency temporary standard that would set requirements for how plants must protect workers. 

Clyburn’s letter also calls on OSHA to set an emergency temporary standard, citing the dire need to protect food industry workers in high-risk environments until more vaccines become available (and something workplace safety advocates have been calling for since last spring). 

Smithfield Foods did not respond to a request for comment by press time. Both Tyson Foods and JBS provided The Counter with statements that defended the actions they took to protect worker safety during the pandemic. 

“Our top priority will always be the health and safety of our people, and we look forward to working with the congressional committee to share what we’ve done and continue to do to protect our team members from the coronavirus,” wrote a Tyson spokesperson in an email. “We’ve invested more than half a billion dollars during the pandemic to transform our U.S. facilities with protective measures, from walk-through temperature scanners and workstation dividers to social distance monitors and additional team member pay and benefits. In addition, we’ve added a Chief Medical Officer to help us safeguard and improve the health of our workforce. We’re also using random testing as a tool to find the virus, testing thousands of workers a week, both symptomatic and asymptomatic. This strategy has enabled us to move from defense to offense in our efforts to fight the virus.” 

JBS also said it welcomed the Subcommittee’s inquiry. “Since the onset of the pandemic, JBS USA has invested more than $200 million in health and safety interventions, more than $160 million in bonuses and permanent increased pay, and donated more than $50 million to support our local communities,” a spokesperson told The Counter, by email. “We have implemented hundreds of safety measures including offering unlimited PPE, constructing permanent physical barriers, establishing physical distancing protocols, and installing hospital-grade ventilation systems in all of our facilities. JBS USA provides immediate testing to all symptomatic team members and close contacts, and has conducted more than 45,000 surveillance tests of asymptomatic team members to date. In addition to the hundreds of safety measures implemented in our facilities, we have voluntarily removed vulnerable population groups with full pay and benefits, covered 100% of all COVID-19 related health expenses for our team members and family members enrolled in our health plan, and offered a $100 incentive bonus for any U.S. team member willing to get vaccinated.” 

In an executive action last month, President Joe Biden ordered OSHA to consider setting emergency temporary standards, which employers would be required by law to follow. He also mandated that the agency revise its Covid-19 safety guidance, which the agency did on Friday, days ahead of a February 4 deadline—though those guidelines still only provide a set of voluntary recommendations.