Packing Plant Worker Lawsuit Dismissed

OMAHA (DTN) -- A federal court on Tuesday dismissed a lawsuit against Smithfield Foods Inc. that alleged the company was not properly protecting workers from COVID-19 at a Milan, Missouri, packing plant.

In April, the Public Justice Food Project filed a lawsuit on behalf of plant workers in the U.S. District Court for the District of Western Missouri.

Although the Missouri plant in Sullivan County has yet to report a positive case of COVID-19 among its workforce and Smithfield has implemented a number of protective measures, an unnamed employee cited in the lawsuit made a number of allegations to the contrary.

According to the Missouri Department of Health and Senior Services, Sullivan County has just one reported positive case of COVID-19.

"After carefully reviewing the motions and the existing record, the court holds that it should decline to hear this matter pursuant to the primary-jurisdiction doctrine to allow the Occupational Health and Safety Administration to consider the issues raised by this case," the court said in its order.

The lawsuit had asked for a mandatory injunction to require Smithfield to take actions to protect employees at the plant by implementing COVID-19 guidelines from the Centers for Disease Control and Prevention.

On April 22, OSHA sent a letter to Smithfield requesting information regarding its COVID-19 work practices and infection at the Milan plant, giving Smithfield seven days to respond.

As part of its inquiry, OSHA requested information about what, if any, personal protective equipment has been given to its workers, engineering controls implemented, contact tracing methods employed, and about policies changed or implemented in light of the pandemic.

Other Smithfield plants have been hit hard by the spread of COVID-19 among employees. Most notably, Smithfield was forced to close its pork plant in Sioux Falls, South Dakota, after more than 850 employees tested positive. The company currently is taking steps to reopen that plant.

"Here, there is no doubt that if workers at the plant contract COVID-19, the harm to plaintiffs could be great," the court said.

"But plaintiffs have alleged only that -- potential harm -- and, in this time, no essential-business employer can completely eliminate the risk that COVID-19 will spread to its employees through the workplace."

EMPLOYEE LETTER

A group of 70 workers at the plant sent a letter to Smithfield on April 2, claiming they were being put at risk by not having access to masks and a lack of social distancing.

"It was not until April 16, 2020, that any of the workers at the Milan plant reported receiving masks," the employees alleged in the lawsuit.

Keira Lombardo, executive vice president of corporate affairs and compliance at Smithfield, told DTN in a statement on Tuesday the company is doing all it can to protect workers.

"We are doing everything in our power to help protect our team members from COVID-19 in the workplace," she said.

"At the core of our COVID-19 response is an ongoing focus on employee health and safety and continued adherence with -- at a minimum -- the CDC and OSHA guidance. All these actions complement safety measures already in place at all our locations and are on top of the hygienic and sanitary environments maintained at all times in our industry for food safety and quality purposes."

David Muraskin, litigation director for the Public Justice Food Project and counsel for the workers, said in a statement to DTN that, while he disagrees with the court's decision, the case brought important issues to light.

"While we disagree that Smithfield has implemented sufficient changes to address workers' concerns and protect their safety, any changes that have been implemented are the result of the courageous workers who came forward to demand better from the company," he said.

"Their unprecedented stand for workplace safety has resonated across the entire meatpacking industry. Smithfield, and other companies across the country, are now on notice that the entire nation is watching their actions and insisting on fair treatment for their employees."

CENTER FOR FOOD SAFETY PETITION

Also on Tuesday, the Center for Food Safety filed a petition with OSHA requesting a rulemaking to establish an emergency temporary standard for meatpacking plants to protect workers across the country.

The group asked OSHA to create a temporary rule to require all meat and poultry plants to develop COVID-19 assessment and control plans; to implement physical distancing measures to protect workers; to provide protective gear including face masks; to prohibit sick workers from coming to work and to provide health care; require plants to slow line speeds if they threaten workers; to educate and train workers on how to reduce COVID-19 spread, and to clean and disinfect tools and equipment; to notify workers of potential exposure to the virus; and for the agency to increase plant inspections.

Read the Smithfield ruling here: https://www.publicjustice.net/….

Read the Center for Food Safety petition here: https://www.centerforfoodsafety.org/….

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

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