By Vin Gurrieri

Law360 (September 17, 2020, 5:36 PM EDT) -- The Occupational Safety and Health Administration recently fined two meatpacking giants for failing to protect workers from coronavirus-related risks, but critics of the agency's approach to the virus say those penalties are far too low to make employers think twice about subjecting workers to dangerous conditions.

OSHA, which fields and investigates worker complaints about unsafe job conditions, fined Smithfield Packaged Meats Corp. $13,494 on Sept. 10 for subjecting workers in its Sioux Falls, South Dakota, facility to a hazardous work environment. Almost 1,300 people who worked at the plant in the spring were infected, and four died. The agency also penalized JBS Foods Inc. a day later to the tune of $15,615 for similarly failing to protect workers at a Greeley, Colorado, plant from virus exposure.

The citations, which were part of a wave of enforcement actions that also included fines against three health care providers, came after months of OSHA taking heat from Democratic lawmakers, unions and workers' advocates for not doing enough to protect workers from COVID-19.

But although OSHA said it fined the companies the most it could, critics say the agency effectively chose to let the billion-dollar meatpacking companies off with a slap on the wrist.

Dr. David Michaels, an epidemiologist and professor at the George Washington University Milken Institute School of Public Health who led OSHA during the Obama administration, told Law360 that the "miniscule" fine against Smithfield does little to deter other companies from putting workers in dangerous conditions.

"One important objective of enforcement actions is to send a message to other employers about the importance of protecting workers. Every enforcement action sends a message," Michaels said. "The miniscule fine that OSHA imposed sends a message to meat factories that they need not worry about OSHA inspections. They can operate as they please, no matter how many workers are sickened or killed."

Fordham University School of Law professor James Brudney, who has served as chief counsel and staff director of the U.S. Senate Subcommittee on Labor, offered a similar sentiment, saying OSHA may have sent a more stern warning to employers to take workplace safety seriously had it issued fines months ago.

"This is OSHA's responsibility. This was an urgent work hazard which workers understood was extreme and which the industry presumably understood was extreme, and OSHA didn't do its job in a timely way," Brudney said. "And what it has done is way too little, too late."

The fact that OSHA issued a wave of fines is notable since the embattled agency has been criticized for generally failing to take such enforcement actions during the pandemic. That the fines came against Smithfield and JBS is also noteworthy because the companies are part of an industry that itself has been closely scrutinized over its response to the virus.

The citations were based on violations of the Occupational Safety and Health Act's so-called general duty clause, which mandates that employers have a broad obligation to protect workers from "recognized hazards" that could cause serious physical injury or death.

In Smithfield's case, OSHA cited the company for a single, serious violation of the general duty clause and fined it what the agency said is the maximum amount for such a violation. JBS was hit with the similar maximum fine of $13,494 for flouting the general duty provision, although OSHA hit it with an additional penalty for failing to timely give an authorized employee representative injury and illness logs after OSHA inspected the site in the spring.

Both companies recently told Law360 through spokespeople that the penalties are "without merit," while United Food and Commercial Workers International Union called the Smithfield fine "insulting" and the JBS penalty "insufficient" in public statements.

Despite the fact that OSHA framed the penalties as being the "maximum allowed by law," legal experts told Law360, the workplace safety watchdog had options for issuing stiffer penalties if it had been willing to embrace more creative approaches to its enforcement duties.

For one, OSHA could have opted to parse Smithfield's sprawling plant's operations and target different areas of the facility for separate general duty clause violations, thus increasing the size of the overall fine, experts said.

"The hazard is the same, but the circumstances of violating it may be different from one operation to another," Brudney said. "There may be issues of social distancing in one, may be issues of personal protective equipment in another, issues of failing to adequately explain screening in a third. You don't have to lump those all together into a single violation. You might well do so if it was a 12-aisle supermarket, but that's not what this is."

Separately, OSHA could have cited Smithfield under a more serious category, according to Debbie Berkowitz, director of the National Employment Law Project's Worker Safety and Health program, who said OSHA "could have done things very differently" when it came to Smithfield.

The $13,494 max fine for a violation of the general duty clause refers only to so-called serious violations, but if OSHA, for example, had found that an employer engaged in "willful or repeated" violations, it could have issued a fine of up to almost $135,000.  

"It was their decision to characterize the citation as 'serious,' which comes with a low penalty, and also to just issue one citation for hazardous conditions throughout the plant," Berkowitz said. "OSHA could have issued this citation as 'willful,' which carries a penalty 10 times higher than a 'serious' citation, and … they could have issued many citations, one for each area of the plant that was endangering workers, because the company failed to implement the key protective measure — allowing workers to be 6 feet apart."

Additionally, Michaels said OSHA could have given itself more enforcement tools to work with had it issued a so-called emergency temporary standard, which would have set a binding workplace safety baseline with respect to the coronavirus.

Critics have argued for months that such a standard is needed.

But Labor Secretary Eugene Scalia and the Labor Department have resisted calls to adopt such a rule, opting instead to issue a series of industry-specific guidance memos and alerts that offer safety recommendations. Proponents of an ETS have been unsuccessful in getting courts to force the agency to issue such a standard, but workers have had some success in getting courts to make companies bolster their workplace safety practices.

"Given the outrageously dangerous situation at [Smithfield's] plant, as evidenced by the large number of workers sickened and killed, if OSHA had issued an emergency temporary standard, it could have easily issued citations for violating several different provisions on the standard," Michaels said. "Secretary Scalia handcuffed OSHA, taking away that tool."

Even on the management side of the bar, Texas-based Dykema Gossett PLLC member Daniel Stern acknowledged that OSHA "could have been more aggressive" in its enforcement efforts. He speculated that the agency may have been cognizant of the fact that it can be difficult for employers to definitively determine whether a coronavirus infection was tied to a person's job. He added that the agency may not want to "overpenalize employers unless they almost seem to be ignoring" workplace safety guidelines from OSHA and the Centers for Disease Control and Prevention.

"I don't think it's going to deter each and every company totally," Stern said. "I do think it's going to make employers more aware of the need to follow OSHA and CDC guidelines and any other things they can find out that will help prevent the spread in the workplace. I do believe it will lead to greater compliance."

Following its initial wave of citations, OSHA may soon start issuing citations to companies in other industries besides the food and health care sectors, Stern said. But even if it does become somewhat more active on the enforcement front, that doesn't mean the agency will suddenly start unleashing a deluge of penalties, he said. 

"Historically, OSHA hasn't swayed as much with [different] administrations as many of the other agencies, so I've been a little bit surprised they haven't been more aggressive about it overall," Stern said. "I think they'll do enough to show they are taking it seriously, but I don't think they're going to really ramp it up and make that one of their agenda points."

--Additional reporting by Mike LaSusa, Kevin Stawicki, Braden Campbell, Max Kutner and Hailey Konnath. Editing by Kelly Duncan and Aaron Pelc.

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