On September 10, the Occupational Safety and Health Administration (OSHA) issued Smithfield Foods (Smithfield) the first fine during the COVID-19 pandemic for “failing to protect employees from exposure to the coronavirus.” OSHA levied the penalty against Smithfield in the amount of $13,494, the maximum allowed under federal law.
OSHA published a press release that stated that the citation centered around Smithfield’s violation of the “general duty clause” of the OSHA Act of 1970 at the meatpacking facility in Sioux Falls, South Dakota. The release detailed how in the spring of 2020, an OSHA inspection revealed that “at least 1,294 Smithfield workers contracted coronavirus, and four employees died from the virus….” This, the writing concluded, failed to meet the mandate of the “general duty clause,” which requires that “each employer…shall furnish to each of (their) employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to (their) employees….”
By October 1, Smithfield must pay the citation and comply with corrective behavior proffered by OSHA, and the company can “request an informal conference with OSHA’s area director or contest the findings before the Independent Occupational Safety and Health Review Commission.” In any event, OSHA Sioux Falls Area Director Sheila Stanley wrote that it was imperative for Smithfield to “quickly implement appropriate measures to protect their workers’ safety and health” including taking the “necessary actions to prevent the spread of coronavirus at their worksite.” While the release failed to specify what actions Smithfield should be implementing, it did provide that OSHA guidance suggests that some actions could be the use of measures, “such as social distancing…and the use of physical barriers, face shields and face coverings when employees are unable to physically distance at least 6 feet from each other.”
The amount of the fine immediately sparked controversy among labor organizations and members of Congress. Senator Elizabeth Warren (D-Mass.) released a statement claiming that “OSHA shrugged as workers died, then issued the lowest possible fine for endangering thousands of workers, sending a message that companies won’t face real accountability.” Subsequently, the United Food and Commercial Workers International Union (UFCW), a labor organization representing Smithfield employees in South Dakota, published a blog rebuking the penalty amount as “completely insufficient.” UFCW International President Marc Perrone called the citation a “slap on the wrist for Smithfield, and a slap in the face of the thousands of American meatpacking workers who have been putting their lives on the line to help feed America since the beginning of this pandemic.” Perrone concluded by asking, “How much is the health, safety, and life of an essential worker worth?”
Smithfield released its own written response to the fine, claiming that “this OSHA citation is wholly without merit and we plan to contest it…We took extraordinary measures on our own initiative to keep our employees as healthy and safe as possible so that we could fulfill our obligation to the American people to maintain the food supply. We incurred incremental expenses related to COVID-19 totaling $350 million during the second quarter alone.”