JBS, Conagra Among Latest Wave Of OSHA Virus Fines

By Michael Angell
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Law360 (October 23, 2020, 5:20 PM EDT) -- Food processing giants JBS Group and Conagra Brands Inc. are among the latest companies slapped with fines by the U.S. Department of Labor's workplace safety arm related to COVID-19 violations, the Occupational Safety and Health Administration said Friday.

The workplace safety watchdog announced it had leveled $381,388 in new fines against 27 establishments between Oct. 9 and Oct. 15, bringing the total penalties imposed between mid-July and mid-October to just over $1.6 million.

Among those in the most recent wave, JBS' Green Bay, Wisconsin, meatpacking plant was hit with a $13,494 penalty for violating OSHA's general duty clause that employers keep a workplace free from hazards leading to death or harm.

JBS head of corporate affairs Cameron Bruett told Law360 the October citation is "entirely without merit." He added that the plant has taken steps including screening employees prior to their work shifts, staggering shifts to promote physical distancing, requiring masks and face shields, installing barriers and cleaning stations, and quarantining affected employees with full pay and benefits.

"[OSHA] attempts to impose a standard that did not exist as we fought the pandemic with no guidance," Bruett said. "When OSHA finally provided guidance in late April, our previously implemented preventive measures largely exceeded any of their recommendations."

This is JBS' second reported COVID-19-related penalty. Its Greeley, Colorado, plant was fined $15,615 in September due to violations of the general duty clause and record-keeping.

Conagra's Marshall, Missouri frozen-food plant received a $2,121 penalty from OSHA related to its record-keeping. A Conagra spokesperson did not respond immediately to comment.

Debbie Berkowitz, who heads the safety and health program at the National Employment Law Project, said the penalties amount to "token enforcement" as many employee complaints about COVID-19-related violations came early in the pandemic, but the agency is only beginning to take enforcement actions.

"Almost every single complaint occurred in April and the fact they are issuing citations now shows they want to say they did something," Berkowitz said.

OSHA enforcements can typically take four to five months following the initial complaint, according to Josh Henderson, an employment and labor partner at Norton Rose Fulbright. Employers could also resolve COVID-19 violations informally without penalties through fixing any complaints leveled by employees, he added.

He agrees that OSHA needs to show it is taking COVID-19 workplace safety seriously, especially since the agency was the target of an AFL-CIO lawsuit over the lack of emergency safety standards early on in the pandemic.

Of the 112 establishments hit with fines since July 13, most have been medical- and health-related businesses in New Jersey and New York, according to OSHA.

OSHA said the fines stem from the businesses' failures to detail plans for employees to follow for respiratory health and protection; lack of training on how to use personal protective gear; failure to report COVID-19-related illnesses or fatalities; and failure to ensure a generally safe workplace. OSHA's fines ranged between $1,735 and $28,070.

OSHA made 46 inspections at New Jersey businesses and has fined companies there some $746,736 in total.

Affiliates of Hackensack Meridian Health System were cited in eight OSHA inspections that resulted in total penalties of $143,735, according to OSHA data. Most of those violations were for failures to provide adequate respiratory protection to employees.

Hackensack Meridian Health's nursing home, the Harborage, received the largest single penalty of $28,070, with OSHA citing violations of five safety standards there.

In a statement to Law360, Hackensack Meridian said it is "aggressively fighting these accusations." It has implemented universal masking across its hospitals, requires universal testing for employees at long-term care facilities, and set up global sourcing and system-wide distribution networks for personal protective gear.

"We anticipated the filing of these citations given the enormous increase in alleged OSHA violations nationally over the last year. The number of the most serious investigations increased by an astounding 4,300 percent compared to the same time period last year," Hackensack Meridian said. 

New York was the second-highest cited state, with 26 inspections yielding $374,564 in penalties.

Two inspections at St. Barnabas Hospital in the Bronx turned up four violations with total penalties of $46,266.

Clearview Operating Co. LLC, which operates a skilled nursing facility in Queens, was also cited in two inspections with fines reaching $34,700.

Businesses in Connecticut were the third most cited with seven inspections yielding $100,126. Massachusetts followed with five inspections resulting in $83,854 in penalties.

Representatives of OSHA and the other companies it cited did not respond immediately to requests for comment.

--Editing by Bruce Goldman.

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