By Vin Gurrieri

Law360 (April 28, 2020, 11:31 PM EDT) -- As President Donald Trump issues an order that would keep meatpacking plants open amid the coronavirus pandemic, Tyson Foods is under fire from a top Democratic senator for being too slow to shutter a plant in Washington, and Smithfield Foods has asked a judge to nix a suit alleging it put workers at a Missouri plant in harm's way.

The twin issues of the nation's food supply and worker safety at food processing plants have gotten increased attention in recent days as more workers at those facilities test positive for COVID-19. On Tuesday, Trump signed an executive order designating meat processors as critical infrastructure under the Defense Production Act, which he said would address certain unspecified "liability problems." 

Meanwhile, food processing giants like Tyson Foods Inc. — a company the president said he was working with on the executive order — have come under increasing scrutiny for their responses to the pandemic from a wide range of unions, workers and lawmakers.

Here, Law360 looks at three developments surrounding workplace safety in the meatpacking industry.

Top Dem Says Tyson Foods Dragged Feet On Plant Closure

Sen. Patty Murray, D-Wash., the ranking member of the Senate Committee on Health, Education, Labor, and Pensions, sent a letter to Tyson Foods CEO Noel White on Monday criticizing the company for waiting too long to close a meat processing plant in Wallula, Washington. She said the company waited more than a week to close the plant after finding out that dozens of workers were infected with COVID-19.

Murray's letter comes on the heels of Tyson Foods Chairman John Tyson on Sunday taking out a full-page ad in several major newspapers, including The New York Times and The Washington Post, in which he stressed the importance the company places on the health and safety of its workforce while also warning that America's food supply chain "is breaking" and that meat shortages are on the horizon.

The company has been forced to either close or severely curtail operations at numerous meat processing plants because of COVID-19, according to public statements it has issued.

The Occupational Safety and Health Administration, a subagency within the U.S. Department of Labor tasked with overseeing workplace safety, joined with the Centers for Disease Control and Prevention on Sunday to issue a guidance aimed at the meatpacking industry that offered numerous suggestions for how businesses can guard against the spread of the virus at their work sites.

But Murray in Monday's letter pilloried Tyson's decision to "delay" closing the Wallula plant on April 23 since it was aware of "at least" 34 confirmed cases of COVID-19 among the plant's workers as early as April 13. Murray's letter also referenced published reports that over 100 workers at the Wallula plant have tested positive for the disease, and the senator added that the number is likely to grow once more testing is completed.

"The more than 1,400 employees in Wallula, the countless members of the surrounding communities, and the millions of Tyson's consumers deserve a swifter and more comprehensive response to the COVID-19 outbreak than what they have experienced thus far," Murray said.

Moreover, Murray called on Tyson Foods to "prioritize workers' well-being" by giving them full pay and benefits while the plant is shuttered and advised the company to consult with public health officials about when and how to reopen the plant before taking any steps to do so.

"At a minimum, Tyson should follow the guidance issued April 26, 2020, by the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration for meat and poultry processing facilities," Murray said in her letter.

A representative for Tyson Foods was not immediately available for comment.

Union Pushes Tyson To Bolster Plant Worker Protections

In light of the full-page ad taken out by Tyson Foods' chairman, the United Food and Commercial Workers International Union, which says it is America's largest union for meatpacking workers, pushed the company and other food manufacturers to display the attitude surrounding workers' safety that Tyson's chairman promoted.

More specifically, UFCW said in a statement Tuesday that the meatpacking industry should "strengthen transparency on plant safety" and asked that the industry join the union's call that plant workers be designated by federal and state governments as "first responders" during the outbreak.

That designation would ensure that workers in the meatpacking industry are prioritized for COVID-19 testing and personal protective equipment they need to safely do their job, according to Marc Perrone, UFCW's international president.

"Our federal leaders must enforce clear guidelines to ensure every employer lives up to the high safety standards these workers deserve and the American people expect," Perrone said in a statement Tuesday, adding that both meatpacking workers and the country's food supply are "in greater danger every day that companies and leaders fail to act."

"Meatpacking companies must increase transparency around their safety efforts to ensure that meatpacking workers, elected leaders, and the communities they serve know exactly what steps they are taking to keep workers safe and our food supply secure," Perrone added in his statement.

Perrone's remarks were issued before Trump floated the idea of an executive order covering workers and businesses in the meatpacking industry. 

Last week, the union sent a letter to Vice President Mike Pence lobbying him to do more to ensure that workers in the industry are kept safe. The union called for measures prioritizing meatpacking and food processing workers for COVID-19 testing, ensuring their access to personal protective equipment and isolating those who are symptomatic or test positive.

The union also said the federal government should impose social distancing mandates on plant operators "to the greatest extent possible, even if this means production slows down."

Following Trump's public statement that an executive order was forthcoming that pertains to the meatpacking industry, Perrone reiterated the need for precautions outlined in his letter to Pence, saying the executive order "must put the safety of our country's meatpacking workers first."

Smithfield Foods Tells Court To Step Aside In Worker Safety Suit

On the litigation front, Smithfield Foods on Monday filed an emergency motion urging a Missouri federal judge to toss a suit alleging it put workers at a meatpacking plant in Milan, Missouri, at risk of contracting COVID-19 by making them work in close quarters without protective gear and discouraging them form taking time off if they felt ill.

The company argued in its motion to U.S. District Judge Greg Kays that a suit filed last week by a workers' advocacy group and an unnamed employee doesn't belong in federal court because OSHA has "regulatory authority" over any alleged workplace safety issues at the plant. 

Smithfield noted in its motion that OSHA sent the company a so-called rapid response investigation request the day before the plaintiffs filed suit seeking information about the company's work practices as they relate to COVID-19 as well as infections at the plant. The company's response to OSHA is due Wednesday and the company "intends to cooperate fully" with federal regulators, according to the motion.

"The court should defer to OSHA and its expertise to investigate and enforce any purported safety violations at the plant," Smithfield said in its motion. "Smithfield is an essential business critical to the nation's food supply. … Subjecting these entities to private lawsuits for injunctive relief, in which safety standards are determined piecemeal by plaintiffs and the courts, will result in inconsistent rulings and uncertainty for both employers and employees."

The suit was filed by the Rural Community Workers Alliance, a nonprofit workers' advocacy group, along with a Jane Doe employee, alleging that the company operated its Milan plant without giving workers sufficient protective gear, made them "work shoulder to shoulder," and forced them to work "often without time to even cover their mouths when they sneeze or cough, and without any time to wash or sanitize their hands."

Additionally, the company allegedly dissuaded staff from taking time off when they are sick and didn't have any testing plan for employees exposed to the coronavirus, according to the complaint.

"Put simply, workers, their family members, and many others who live in Milan and in the broader community may die — all because Smithfield refused to change its practices in the face of this pandemic," the complaint said. "Because Smithfield will not act, the law allows plaintiffs to seek redress to ensure the safe operation of the facility and to protect their community."

But in Monday's motion, Smithfield said the plaintiffs "grossly misrepresent the substantial safety measures" that the company purportedly put in place at the Milan plant.

Besides OSHA having jurisdiction over workplace safety issues at the plant, Smithfield also argued that the Missouri Department of Health and Senior Services has jurisdiction over any issues of public health, and that the issues created by the pandemic are "both outside the conventional experience of judges and squarely within the technical and policy expertise" of the agencies.

"The agencies are already responding to these concerns in real time, adapting as new facts emerge," Smithfield said in its motion. "That is not a role that a district court can or should take on. Plaintiffs are wrong to ask the court to interpose itself between these agencies and essential businesses like Smithfield's Milan plant."

The plaintiffs have until midday Wednesday to respond to Smithfield's motion. A hearing on the plaintiffs' request that the judge order Smithfield to implement various safety precautions to protect its workers from COVID-19 is scheduled for Thursday.

The case is Rural Community Worker's Alliance et al. v. Smithfield Foods Inc. et al., case number 5:20-cv-06063, in the U.S. District Court for the Western District of Missouri.

--Additional reporting by Adam Lidgett and Daniel Wilson. Editing by Haylee Pearl.

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