By Jeff Jones
Special to the UCBJ
As more businesses in Tennessee and other states begin to “reopen” following the relaxation or expiration of stay-at-home orders, employers are faced with continuing issues of workplace safety to address the coronavirus pandemic.
Modern technology has introduced ways for employers to monitor employee compliance with social distancing in the workplace, to screen employee body temperature upon arrival, and to evaluate employee health status on a daily basis as well as gathering information on their overall medical history – all in the name of workplace safety. As the pandemic continues and businesses employ such measures in an effort to combat the virus, employers may experience an increase in employee complaints and resistance to overly invasive measures. Given the lack of certainty with respect to the safety-measures that are or are not required, employers will continue to be challenged to balance workplace safety measures with the existing employment laws regarding employee privacy and discrimination.
Meanwhile, employers may also find their safety practices being challenged as insufficient by workers who fear exposure to the virus in the workplace. There is no doubt that employers should continue to adhere to guidance issued from various governmental agencies including OSHA, the Department of Labor, and the CDC, which can be found on these agencies’ respective websites.
While there is no specific OSHA standard relative to the pandemic, OSHA’s general duty clause under Section 5(a)(1) of the Act requires employers to provide a workplace that is free from recognized hazards that are causing or are likely to cause death or serious physical harm. OSHA also prohibits employers from retaliating against employees who complain regarding workplace safety issues or employees who (according to OSHA’s “Desk Aid” for its investigators) “exercise any right afforded by the OSH Act.”
Employers uncertain as to how far they should go to respond to the pandemic in the workplace may wish to consider the recent case of Rural Community Workers Alliance/Doe v. Smithfield Foods, Inc., et al. (USDC, W. D. Missouri, 5:20-cv-06063). While Smithfield Foods, as a meatpacking industry, has unique workplace challenges not faced by all employers, the case nonetheless illustrates how an employer’s response to the pandemic can be subject to scrutiny when challenged, and the importance of documenting those steps.
On April 23, the plaintiffs petitioned the United States District Court for the Western District of Missouri to compel Smithfield Foods to institute certain measures to reduce the potential for exposure to the pandemic in the workplace, seeking a declaration that the plant constituted a public nuisance and that Smithfield breached its duty to provide a safe workplace. On April 27, Smithfield moved to dismiss the case in its entirety and in support of its position, Smithfield noted OSHA’s primary-jurisdiction in the area of workplace safety and advised the Court that just one day before the case was filed, on April 22nd, OSHA had sent Smithfield a “Rapid Response Investigation,” requesting extensive information from Smithfield regarding its COVID-19 work practices and giving Smithfield only seven days to respond (which it did on April 29th).
According to the extensive information it provided to the Court regarding its response to the threat of coronavirus, Smithfield Foods:
- requires thermal screening of all employees,
- does not penalize employees who miss work due to C-19 related symptoms,
- has eliminated co-pays for relevant testing and treatment,
- provides face masks to all employees, gloves and face shields to production-floor workers,
- administers hand sanitizer every 30 minutes to employees, and
- allows employees to fill their personal hand sanitizers using the company supply.
Smithfield also cleans and disinfects in accordance with CDC guidelines, and in order to facilitate social distancing in the workplace has erected plastic barriers along the production lines, and on the eating tables in the break rooms. The Company also temporarily increased employee pay by $5/hour and reduced overall production.
In granting Smithfield’s Motion to Dismiss on May 5th, the Court did not decide whether Smithfield was in compliance with the CDC or OSHA guidance, but instead deferred to the jurisdiction of OSHA and the USDA, noting that OSHA’s “special competence” includes “enforcing occupational safety and health standards.” The Court based its dismissal on a number of factors and recognized that “Smithfield has taken significant remedial steps…to protect its workers from COVID-19.” It is notable that the Court dismissed the Complaint “without prejudice,” explaining that if OSHA fails to act quickly, the plaintiffs may seek judicial action through the emergency relief process under OSHA’s framework.
At the very least, employers should continue to stay informed on COVID-19 issues, and strive to adhere to any applicable industry-specific guidance. OSHA has recently issued specific guidance for the manufacturing industry workforce, construction workers, retail workers, package delivery workforce, meatpacking and processing facilities, and the restaurant, food and beverage businesses.
Employers should already have in place a COVID-19 Infectious Disease Preparedness and Response Plan and should update other existing policies to reflect these practices.