By James L. Curtis, Brent I. Clark, Mark A. Lies, II, Adam R. Young, Matthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: In Rural Community Worker’s Alliance et al v. Smithfield Foods, Inc. et al., No. 5:20-cv-6063 (W.D. Mo. May 5, 2020), Western District of Missouri Judge Greg Kays granted Smithfield’s motion to dismiss RCWA’s request for emergency relief that would have required the Company to implement additional safety measures to combat COVID-19.  The order demonstrates that even during a public health emergency, courts will defer to the expertise of OSHA on occupational safety issues.

As COVID-19 spreads across the United States, employers are witnessing a surge of employee complaints about precautions and litigation related to illnesses and deaths.  Previously, we blogged about the specter of Section 11(c) whistleblower complaints where action is taken against employees who may have previously complained about COVID-19 safety or refused to work.  Some employees are going directly to the courts, seeking relief for alleged retaliatory discharge under state whistleblower statutes or based state common law retaliatory discharge principles.

A recent case out of the Western District of Missouri, Rural Community Worker’s Alliance et al v. Smithfield Foods, Inc. et al., presents a more novel claim: employees filing in federal court to enjoin their employer to implement additional safety measures to specifically combat the spread of COVID-19.  While a creature of these unprecedented times, and likely precedential, the outcome of the case is also a reminder of principles of deference to agency expertise.

On April 23, 2020, RCWA, on behalf of employees working at Smithfield’s Milan, Missouri meat processing plant, filed a federal court complaint against the Company, seeking a declaratory judgment “that Smithfield’s failure to implement appropriate worker protections during the COVID-19 crisis constitutes a public nuisance under Missouri law and a violation of the right to a safe work place under Missouri law.”  Additionally, RCWA moved for emergency injunctive relief that would have required Smithfield to implement specific safety measures and controls to address COVID-19, such as giving employees an opportunity to wash their hands while on the line; providing tissues; changing its leave policy to discourage individuals to show up to work when they have symptoms of the virus; giving workers access to testing; and developing a contact-tracing policy.

Smithfield moved the Court to dismiss the case on preemption grounds, claiming“[t]he workplace safety and public health concerns created by the novel coronavirus are both outside the conventional experience of judges and squarely within the technical and policy expertise of OSHA . . .”  Accordingly, Smithfield argued, the matter should be dismissed based on the common-law doctrine of primary jurisdiction, which is “is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.” United States v. Western Pac. R.R. Co., 352 U.S. 59, 63 (1956).

The court agreed, granting Smithfield’s motion to dismiss based on OSHA’s “primary jurisdiction” and the agency’s ability to uniformly enforce its COVID-19 guidance for meat processing facilities.  The Court writes, “Due to its expertise and experience with workplace regulation, OSHA . . . is better positioned to make this determination than the Court is. Indeed, this determination goes to the heart of OSHA’s special competence: its mission includes ‘enforcing’ occupational safety and health standards.”

The court also highlighted the remedies — other than court intervention — that were available to the employees, including emergency relief from the Secretary of Labor under Section 662(a) of the Occupational Safety and Health Act.  Section 662(a) permits the Secretary of Labor to petition the court “to restrain any [dangerous] conditions or practices in any place of employment . . . which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by [the Act].”  The Court conceded that there might be some delay in the invocation of this procedure, but ultimately “following this procedure ensures the USDA and OSHA can take a measured and uniform approach to the meat-processing plants under its oversight.”

With COVID-19 continuing to spread and the likely proliferation of “hot spots” in certain work environments, novel lawsuits or tort claims for damages likely will become more common.  When defending tort claims and OSHA enforcement, however, employers have recognized defenses based on their appropriate policies, protocols, and precautions to address the COVID-19 hazards.  Employers should consult with outside counsel to ensure that their policies and procedures are lawful and compliant, and consistent with recognized industry practice.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.