The meatpacking industry has come under scrutiny recently for its actions during COVID-19. Meatpackers have been sued by their employees for gross negligence that allegedly led to their injury and deaths from the coronavirus. The companies are accused of failing to allow for distancing of their workers and of not providing them with personal protective equipment. Now, the federal government is also being sued as a result of the alleged abuses by the meatpacking industry. The latest lawsuit is against the Occupational Health and Safety Adminsitration for its failure to regulate and enforce safety standards that may have prevented deaths and illnesses.

First, by way of clarification, people cannot generally sue the federal government for monetary damages unless there has been an actual tort committed. What people can do is sue the federal government for its failure to regulate. If they are successful in their lawsuit, the outcome will be that a court will order the federal government to improve their regulations.
 

Employes Must Provide Employees with a Safe Workplace, Even During COVID

Here, the regulations at issue are the OSHA worker safety regulations. Employers must follow a myriad of rules in order to keep their employees safe. The overarching requirement is that employers must provide their employees with a safe workplace. If not, they can face regulatory enforcement actions from the federal government that can include fines.

The plaintiffs in this case work at the Maid-Rite Speciality Foods meatpacking plant in Pennsylvania. They were all sickened by COVID-19 when there was an outbreak in their plant. They claim that there were hazardous conditions at the plant. The workers filed a complaint with OSHA about their work conditions back in May. The workers detail the allegedly poor efforts of their employer to contain the outbreak. They allege that Maid-Rite did not separate sick employees from the rest of the workers and failed to inform employees when there were infections at the plant. They also detail that the company tried to induce sick employees to come into work by offering those who did not miss work days a bonus.

However, according to the plaintiffs, OSHA did not respond to the complaint that was filed in May. Their failure to respond put the employees in further danger. For its part, OSHA argues that it responded to the complaint by writing the company and detailing the allegations and ordering it to do its own investigation and make modifications if necessary. However, OSHA specifically told the company that it did not intend to make a site visit in response to the complaint. Nonetheless, OSHA claims that it directed an extensive set of questions to the company and ordered them to provide responses. The regulator states that the inspection is still underway and could last for up to six months. The plaintiffs allege in their complaint that conditions in their plant have not changed at all since they filed the complaint with OSHA and that their employer is still doing the same things that would risk their health.
 

OSHA Has Brought Only One Enforcement Action Against Employers During the Pandemic

In fact, OSHA's record of enforcing its rules during the COVID-19 crisis seems shaky at best. The regulator has received over 4,200 complaints from workers since the public health emergency was declared. OSHA claims to have closed over 3,000 of these complaints. However, OSHA has issued only one citation to an employer during this entire time when many more employers have certainly been deficient at protecting their own workers. This calls into question exactly what OSHA has done in terms of enforcement.

There are some agencies that have as part of their laws a provision that allows civil suits to be filed to force them into action. One agency that has this statutory provision is the Environmental Protection Agency, and civil lawsuits against the EPA are commonplace. The plaintiffs' attorney are trying to interpret the law that created OSHA as having this type of language in its statute. This is a novel legal theory, and observers will be watching this case closely to see if OSHA can be sued for its failure to regulate. What is certain is that OSHA enforcement actions have declined since 2017 and that scores of workers have been sickened by COVID-19 on the job.

Still, two previous attempts to sue OSHA in court recently have been unsuccessful as the lawsuits against OSHA have been dismissed.