Meatpacking plant policies that encourage workers to show up sick are legal

Ruqaiijah Yearby, Saint Louis University

(THE CONVERSATION) — Working in meatpacking plants has always been dangerous. A recent study shows that it became deadlier in the era of COVID-19, even as company profits soared.

This analysis, published in December 2020, estimates that 6%-8% of all COVID-19 cases and 3%-4% of all COVID-19 deaths in the U.S. were tied to meat and poultry plants. Workers in these facilities stand close together on processing lines, which makes social distancing difficult.

At the same time, companies like Tyson, which produces chicken, beef and pork, and JBS, which produces beef and pork, are reporting high earnings despite COVID-related challenges such as plant closures.

I am a law professor and have written about links between lax state and federal enforcement of health and safety laws and increased rates of COVID-19 infections and deaths. Thanks to punitive attendance rules and Trump administration policies, meat- and poultry-processing workers have been unnecessarily exposed to COVID-19. In my view, the best way to protect them is to reform laws that prioritize production over workers’ health.

Sick on the job

Meat- and poultry-processing companies’ standard attendance policies were punitive even before the pandemic. Companies issued points for employees who missed work and fired those who accumulated too many points. These policies are still in place.

Workers at Tyson and JBS plants are required to go to work even if they are experiencing symptoms of COVID-19 or awaiting test results. The companies excuse absences for COVID-19 only if a worker has tested positive for the virus, or in Tyson’s case, has “documented clinical symptoms.” Tyson and JBS workers have told reporters that costs and wait times make it hard for them to access testing, so they go to work sick.

That said, both companies have taken steps to control the spread of COVID-19 at their plants. Tyson hired medical professionals, cleans its plants daily and monitors social distancing. JBS now offers unlimited personal protective equipment and tests symptomatic workers and close contacts. However, even with safety protocols, the virus can spread in the workplace if infected employees come to work.

Meat and poultry plants as ‘critical infrastructure’

As COVID-19 spread in the spring of 2020, then-President Donald Trump signed an executive order that included language provided by meat trade associations designating meat and poultry plants as critical infrastructure under the Defense Production Act. The order directed the U.S. Department of Agriculture to ensure that meat and poultry processing facilities stayed open or that they reopened as soon as possible during the pandemic to prevent meat shortages.

In May 2020, COVID-19 infections among meat- and poultry-processing workers more than tripled, and the number of deaths quadrupled. Still, with the USDA’s help, companies invoked the executive order to maintain operations. For example, in Cold Spring, Minnesota, a Pilgrim’s Pride plant that processes chicken stayed open because of Trump’s order even though worker infections spiked from 83 on May 8 to 194 on May 11.

Profits and lawsuits

On Nov. 17, 2020, Tyson announced net income of US$692 million for the fourth quarter of 2020, up from $369 million for the same period in 2019. Tyson stock traded at $1.81 per share, up 49.5% from the same period in 2019. This was a result of increased production. To date, over 12,500 Tyson workers have been infected with COVID-19. 

Tyson currently faces a lawsuit for a COVID-19 outbreak at a plant in Waterloo, Iowa that has sickened at least 1,000 workers and killed five. The wrongful death lawsuit filed by the families of three deceased employees charges that the company required workers – including some who were transferred from facilities with COVID-19 outbreaks – to work long hours in cramped conditions.

For its part, JBS reported $581.2 million in net profits in the third quarter of 2020, beating analysts’ forecasts. On Sept. 12, 2020, the U.S. Occupational Safety and Health Administration fined the company $15,615 due to six deaths and 290 COVID-19 infections in its Greeley, Colorado plant.

Commenting on the fine, two former federal regulators noted that the Trump administration could have punished JBS much more severely if it had penalized the company for violations at multiple plants and designated them as willful violations. In November 2020, 32 new infections were confirmed at the Greeley plant.

Legal reforms

Critics argue that the Occupational Safety and Health Administration has not adequately enforced workplace health and safety laws during the pandemic. Trump’s executive order limited OSHA’s authority to enforce the laws and authorized the Department of Agriculture to keep meat and poultry plants open despite outbreaks. Even with stronger enforcement, however, punitive attendance policies still could increase infection rates by requiring workers to go to work sick.

President Joe Biden issued an executive order on Jan. 21, 2021, directing the Department of Labor to issue stronger guidance on workplace safety during the pandemic. But employers do not have to comply with this guidance, and it does not address punitive attendance policies.

I believe three reforms are needed to fill the gap. First, federal and state agencies could use their legal authority to prohibit punitive attendance policies. Section 5 of the Occupational Safety and Health Act of 1970 includes a “general duty standard” that requires employers to provide employees with a place of employment free from recognized hazards that are causing or likely to cause death or serious harm.

Although this would be a new use of the “general duty” standard, it would address a recognized hazard that is likely to cause death or serious harm. This is a mandatory requirement that employers already have to comply with and does not require an in-person inspection to enforce.

Second, Biden could withdraw Trump’s executive order classifying meat and poultry plants as critical infrastructure. And the Biden administration could require plants to close down if new outbreaks occur among their workers.

Finally, meat and poultry companies could be required to provide workers with hazard pay, which should increase if the companies’ net profits rise. As a precedent, Seattle, Long Beach, California and Oakland, California all recently adopted hazard pay mandates for grocery workers during the pandemic.

Grocery store chains are challenging the laws, arguing that their profit margins cannot support these payments. But it would be hard for meat and poultry companies to make that argument in light of their recent earnings.

Meatpacking plants emerged as hot spots of infection early in the COVID-19 pandemic. As of Feb. 24, 2021, more than 57,454 meat- and poultry-processing workers had tested positive for COVID-19 and 284 had died. In my view, it is time for legal action to protect meat and poultry workers and compensate them fairly for working in hazardous conditions during this pandemic.