Robert J. O’Hara, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, authored an article in Legal Pulse, published by the Washington Legal Foundation, titled “Smithfield, Safety, and OSHA: Navigating Through Litigation in the COVID-19 Era.”
Following is an excerpt:
On April 23, 2020, during the height of the COVID-19 pandemic, workers in Milan, Missouri sued the largest pork producer in the United States, Smithfield Foods, Inc. (“Smithfield”), over its failure to provide a safe workplace. Press accounts indicated that hundreds of employees at other Smithfield facilities in South Dakota and Wisconsin became infected with COVID-19, creating “virus hot spots” in those locations, forcing Smithfield to shut down those plants. Although there were no Milan workers infected by the COVID-19 virus at the time of suit and the plant continued to operate, the Milan workers were understandably concerned that they could also fall victim to the virus.
The suit, Rural Community Workers Alliance vs Smithfield Foods, Inc. (No. 5:20-CV-06063-DGK) brought in the Western District of Missouri, alleged that Smithfield knowingly endangered its workers by failing to follow the Centers for Disease Control and Prevention (“CDC”) guidelines and state public health officials. …
This case pivoted on a few key factors—deference to an expert agency and lack of injury. The court stepped out of OSHA’s way, but left an opening to revisit the claim if warranted. Since the OSH Act contains no private right of action, litigants in such situations will need to pursue a public-nuisance claim. Such a cause of action is already being tested against employers in other industries in the COVID-19 context. Employers should monitor those cases closely.
The most important takeaway here is that a thoughtful review and implementation of guidance issued by CDC, OSHA, state agencies etc. may be the best deterrent to the spread of COVID-19 in the workplace and the best defense to the rash of suits on the horizon. Stay tuned, as the COVID-19 virus has evolved, so too will regulation, law, and litigation.