Tag: Occupational Safety and Health Administration

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Court defers to OSHA on COVID-19 safety issues

gavel, legal, OSHA

Smithfield Foods is a meat-processing company, which was affected by several federal and state orders related to COVID-19. On April 4, the state of Missouri identified livestock-slaughter facilities as “critical infrastructure.”

On April 22, the Occupational Safety and Health Administration sent a “rapid response investigation” letter to Smithfield regarding its COVID-19 work practices and infection at Smithfield’s Milan, Missouri, plant, and giving Smithfield seven days to respond. OSHA requested that Smithfield identify what policies and actions had been implemented in light of the COVID-19 pandemic.

The Rural Community Workers Alliance, which represents the workers at Smithfield’s Missouri plant, brought a lawsuit in the U.S. District Court for the Western District of Missouri accusing Smithfield of failing to adequately protect employees at the Missouri plant from contracting COVID-19. The RCWA raised state-law claims for public nuisance and breach of duty to provide a safe workplace. 

The court dismissed the lawsuit. The court dismissed the case under the primary jurisdiction doctrine, which allows a district court to refer a matter to the appropriate administrative agency for ruling.

Citing in part the Trump administration’s April 28 Executive Order requiring meat processing plants to continue operating during the pandemic, the court concluded that “OSHA (in coordination with the USDA per the Executive Order) is better positioned to” determine whether Smithfield’s plant was complying with federal guidance. Rural Community Workers Alliance, et al. v. Smithfield Foods, Inc. et al., No. 5:20-CV-06063-DGK 2020 WL 2145350 (W.D. Mo. May 5, 2020)

IMPACT: While labor unions and advocacy groups will continue to raise concerns regarding worker safety in light of COVID-19, federal courts may be inclined to defer to OSHA on these matters. Ultimately, by reducing the risk of workers’ exposure to the virus, employers can also reduce their own exposure to liability.

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Judge hands McDonald’s a whopper of a rebuke for its COVID-19 response

chief people officer McDonald's

A month ago I reported on a novel lawsuit filed against McDonald’s Corporation in which the plaintiffs sought to have the fast-food conglomerate’s alleged failure to comply with health guidance and provide PPE to its employees declared a public nuisance.

chief people officer McDonald'sLast week, the judge granted the plaintiffs a preliminary injunction, concluding that they were likely to succeed on the merits of their claims. In so ruling, he concluded that the company fell short in its obligation to keep safe its employees and its customers.

Also read: When employees return to work, consider these guidelines

An issue in the case was McDonald’s exception to its face-covering and social distancing policy, which states, “Please note that individuals may be closer to each other than 6 feet, and pass each other momentarily, as long as it’s not for a period of 10 cumulative minutes or more.”

The court did not find that policy was reasonable (or likely to be lawful) under any set of circumstances during this pandemic.

McDonald’s has created an environment that leads employees, including managers, to believe they can take off their masks and stand within 6 feet of each other as long as they do not do so in excess of 10 minutes. This increases the health risk for the employees, their families and the public as a whole and conflicts with the Governor’s Order on social distancing potentially undoing any good it has done as we fight this incredibly contagious disease. …
“Trying your best” in a pandemic can still cause substantial interference with the public health in a pandemic, especially when employees are not expected to remain 6 feet apart for periods of less than ten minutes. Defendants’ inability to ensure that employees are appropriately covering their face when not 6 feet apart is unreasonable given the magnitude of the potential consequences. …
McDonald’s social distance training is not in compliance with the Governor’s Order, nor has the Court been made aware of any CDC guidance that supports McDonald’s 10 minute exception to social distancing protocol. …
This potentially hazardous combination contradicts the Governor’s Executive Order and Illinois public safety guidelines on social distancing which require people to maintain a 6 foot distance from each other or wear a mask. The current McDonald’s environment leads employees, including managers, to believe they can take off their masks and stand within 6 feet of each other as long as they do not do so in excess of 10 minutes. This increases the health risk for the employees, their families, and the public as a whole and conflicts with the Governor’s Executive Order.
This is the opinion of one judge in one state court on a novel legal theory. However, it does illustrate that employers are taking some (a lot of?) legal risk if they ignore, flout, misstate, or misapply state or local safety and reopening rules. Learn the rules for your jurisdiction, and train your managers and supervisors on them so that they can enforce them to keep everyone as safe (and legally compliant) as possible.
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Do Workplace Bullies Violate OSHA?

Jon Hyman The Practical Employer

According to a study recently published in the Journal of Applied Psychology, bullying bosses make workplaces less safe.

Poor treatment from a boss can make employees feel that they’re not valued by a group. As a result, they can become more self-centered, leading them to occasionally forget to comply with safety rules or overlook opportunities to promote a safer work environment.

The headline made me think that if bullying contributes to an unsafe workplace, can it also violate OSHA? The answer is quite possibly yes.

While OSHA does not have a specific standard on workplace bullying, it does have a General Duty Clause. It requires that employers provide a workplace free from conditions that cause, or are likely to cause, death or serious physical harm to employees. It’s not a stretch to imagine bullying, or permitting the continued employment of a bully, to violate this duty.

Moreover, if bullying violates OSHA, then failing to have a policy against it, and properly training employees on that policy, also violates OSHA. It’s a potential triple whammy.

Arguing that OSHA covers bullying is not novel. At last year’s American Bar Association’s Labor and Employment Law Section annual conference, for example, one panel argued for OSHA coverage for sexual harassment. OSHA already covers workplace violence and the hazards that cause it, potentially including intimidation and verbal abuse. And, in 2011 OSHA adopted an anti-bullying policy for its own employees.

I’m not saying this is a clear-cut issue. In fact, I think it’s more likely than not that OSHA does not cover workplace bullying. But the fact that we’re having this conversation shows that this is an ongoing problem that employers need to address.

What can employers do? The Journal of Applied Psychology study offers three suggestions.

  1. Implement training programs that can improve leaders’ skills in interacting with their employees, so as to provide feedback and discipline in ways that are neither offensive nor threatening.
  2. Promote a more civil and engaged work environment that strengthens social bonds between employees and creates a buffer against the negative consequences of their boss’ bad behaviors
  3. Implement transparent performance evaluation processes so employees have less uncertainty about their social status in the workplace.
Or, you can just adopt my four-word workplace civility policy. Either way, tolerating and condoning abuse in the workplace, or worse yet, perpetrating it, cannot and should not continue, OSHA violation or no OSHA violation.