Essential but Ignored:COVID-19 Litigation and the Meatpacking Industry

64 Pages Posted: 11 Apr 2022 Last revised: 20 Jun 2022

Date Written: January 8, 2022

Abstract

The spread of the novel coronavirus SARS-CoV-2 (COVID-19) among meatpacking employees forced closures and slowdowns at many plants across the United States. As the meatpacking giants JBS, Smithfield, and Tyson became hotbeds for COVID-19, national meat production plummeted. To forestall further supply chain disruptions, former President Trump passed an Executive Order compelling plants to continue operating as “essential businesses.” As work continued, employees reported that social distancing and mask-wearing were not being enforced, managers were pressuring sick employees to work and not revealing co-worker’s infections, and an overall lack of Personal Protective Equipment (PPE) or training to reduce the risk of infection prevailed. With over 50,000 meatpacking workers contracting and 250 dying from COVID-19, academic scholarship has neglected addressing this failure to keep workers safe.

The problem is that while workers were deemed “essential,” they were ignored by employer practices and lax regulations allowing rapid COVID-19 transmission in the workplace. As illnesses and deaths mounted, the former Trump administration did not issue a COVID-19 emergency standard and many states also narrowed their worker protections, passing “liability shield” legislation and restricting worker’s compensation coverage for employee claims. Injured on the job, plaintiffs began suing for their rights. However, while litigation brought by workers and their families, labor advocates, and unions has advanced, plaintiffs continue to struggle to overcome motions to dismiss based on preemption by either workers’ compensation, primary jurisdiction, or liability shields.

This Article is the first to use COVID-19 litigation to expose gaps in workplace safety, and the first to present a timely, evidence-based solution to address the problem: a new Emergency Temporary Standard (ETS) and workers’ compensation reform. The new ETS will provide a necessary baseline for Occupational Safety and Health Administration (OSHA) fines and citations which will, in turn, motivate companies to adopt safety practices. It will also help plaintiffs present evidence of breach of a standard in their workers’ compensation hearings and personal injury claims. Finally, this Article will fundamentally impact three simultaneous discussions: (1) an investigation by the new House Select Subcommittee on the Coronavirus Crisis on how the country’s meatpacking companies handled the pandemic; (2) the development of a new Emergency Temporary Standard to combat the spread of COVID-19; (3) litigation involving a case accusing the world’s largest meat processing company of causing a worker’s COVID-19 death.

Keywords: COVID-19, Pandemic, Meatpacking, Litigation, Food System, Workplace Safety, OSHA, Liability Shield, Essential Workers

JEL Classification: L66, J81, J83, I18, I14Q13, Q18, K31, K32, K41, K13, J28, J43, J53, H77, D23, D62, H51

Suggested Citation

Marks, Alexia Brunet, Essential but Ignored:COVID-19 Litigation and the Meatpacking Industry (January 8, 2022). Northeastern University Law Review, Vol. 14, No. 1, 2022, U of Colorado Law Legal Studies Research Paper No. 22-11, Available at SSRN: https://ssrn.com/abstract=4078910

Alexia Brunet Marks (Contact Author)

University of Colorado Law School ( email )

Wolf Law Building
401 UCB
Boulder, CO 80309
United States

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