OSHA comes under fire for 'paltry' fines and lax guidance to meat plants
While critics call the citations too small, companies including Smithfield and JBS have denounced the fines, saying they followed recommendations for the pandemic once they were available.
Lillianna Byington, FoodDive
Nov. 17, 2020
Back in 1988, the Occupational Safety and Health Administration fined a meatpacking plant in Sioux Falls, South Dakota, owned by John Morrell & Co., $4.3 million for three willful violations of the general duty clause of the OSH Act of 1970 after more than 40% of the 2,000 workers at the facility developed cumulative trauma injuries like tendonitis and carpal tunnel. In a settlement, the fines were later dropped down to $990,000.
About 32 years later, the coronavirus has spread in meat plants across the country, including that same plant in Sioux Falls, which is now owned by Smithfield Foods. As at least 1,294 Smithfield employees got the virus and four died at that same South Dakota plant, OSHA proposed a $13,494 fine for violating its general duty clause, saying it was the maximum permitted by law. It gave the same reason for a $15,615 fine it issued to a JBS plant in Colorado soon after.
But former leaders at OSHA and legislators point to previous fines — like the one in 1988 — to say that isn’t the case.
"It is absolutely not true that those were the maximum fines they could give to these meatpacking plants," said Debbie Berkowitz, who previously worked at OSHA and is now the worker safety and health program director at the National Employment Law Project. "The fines reflected their decision just to issue one smaller citation. However, I think these small fines … are even less than a slap on the wrist."
In those two fines to JBS and Smithfield, which totaled less than $30,000, OSHA cited the companies for one serious citation each, where the maximum is $13,494 per violation. Under the general duty clause, which requires companies to keep the workplace "free from recognized hazards that can cause death or serious harm," the agency’s maximum fine for a willful citation is now $134,937.
A serious violation is used if there is a likelihood that death or serious harm could result from a condition at work unless the employer didn’t and couldn’t have known, while a willful violation is when a company demonstrated intentional disregard for the Act’s requirements or indifference to employee health, according to OSHA. Some say that plants could have received more than one citation or a willful violation.
David Michaels, head of OSHA during the Obama administration, tweeted that “OSHA went VERY VERY easy on Smithfield.” Michaels said “OSHA could have issued numerous citations” and “if OSHA asserted they were willful, the penalty could be 10X as high.” He told Government Executive these could have been willful violations because Smithfield and JBS “clearly knew the hazard existed and it was feasible to abate the hazard.”
Sens. Elizabeth Warren (D-Mass.) and Cory Booker (D-N.J.) sent a letter to OSHA...
more, including links