Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal.
Telephone (310)274-8216; email@example.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com
As we learned late last week, President Donald Trump and First Lady Melania Trump tested positive for COVID-19. They now join the more than 7 million others in this country who, lamentably, have suffered the same fate. As prayers and well-wishes are sent their way, there’s also frustration and anger about what the president should have done differently over the course of the pandemic to protect himself and the country, including especially its workers.
We also learned last month that as early as Feb. 7, the president recognized that COVID-19 was “deadly stuff” and “highly contagious.”
Despite privately acknowledging the severity of the virus earlier this year, he told the public not to worry and said, “we have it totally under control.” On Feb. 26 he predicted the number of U.S. cases “within a couple of days is going to be down close to zero.”
Before long, lots of people in this country were spreading the coronavirus. The country gradually shut down in response. But essential workers, like nursing home attendants, bus drivers, grocery store clerks, and warehouse workers — disproportionately Black, Latino, and low-income — had to go to work, many got exposed and got sick.
The SARS-CoV-2 virus made hazardous workplaces — even in the best of circumstances — death traps. This was especially true in meatpacking plants. Notoriously, the Smithfield Foods pork processing plant in Sioux Falls, S.D. — forced to close on April 15 — had become the number one hotspot in the U.S., with a cluster of 644 confirmed cases among its workers and those who had been in contact with them. Similar deadly outbreaks, and resulting health department-ordered shutdowns, were occurring at Tyson, JBS-USA and other plants.
Faced with production — and profit — disruptions, the meatpacking industry went on the offensive. In late April, Tyson took out a full-page ad in several major newspapers, warning that the country’s food supply was being made “vulnerable.” A week earlier, as lobbying efforts reached a fever pitch, industry executives had submitted a draft executive order invoking the Defense Production Act to prevent plant closures, for the president’s signature.
On April 28, Trump signed an executive order remarkably similar to the industry version, declaring meatpacking plants to be “critical infrastructure.” The order effectively, if not legally, chilled local actions to close plants with COVID-19 outbreaks. Throwing a bone to worker safety, it referenced CDC and OSHA guidance. But absent enforceable standards, that guidance has, as expected, proven toothless.
As of Sept. 30, more than 44,000 meatpacking workers nationwide have tested positive for COVID-19 at 504 plants and 213 meatpacking workers have died. In the face of these calamitous numbers, following inspections at two plants, OSHA issued fines a few weeks ago against Smithfield and JBS totaling a paltry $29,000.
Smithfield’s revenue last year was nearly $14 billion. JBS’s was more than $51 billion. The OSHA fines’ impact: less than a mosquito bite on a tyrannosaurus.
And now, as if the injury to meatpacking workers hasn’t been enough, the industry is delivering a further insult. Reuters reports on a widespread pattern of rejection of meatpacking employees’ COVID-19-related workers’ compensation claims. Workers’ comp is effectively the only way to recover medical expenses and lost wages for work-related injuries and deaths. Administered by the states, the system generally insulates employers from lawsuits and permits employees to secure benefits without having to prove fault. The catch, regarding COVID-19-related illness and death, is that the injury must be related to work.
Regrettably but unsurprisingly, meatpacking companies and their insurers are asserting that since workers can’t prove they contracted COVID-19 at work, they’re out of luck. Even in cases of massive outbreaks. So, workers and their families, hobbled by COVID-19, are left holding the bag.
There’s a solution to this gross unfairness. It’s called a “presumption” of coverage. Several states provide that COVID-19 workplace-related presumption for workers in health care and emergency services. The House-passed updated HEROES Act provides it for federal and postal workers whose duties involve a risk of exposure to the virus. Meatpacking plant workers — and other essential workers exposed to an elevated risk of contracting COVID-19 due to the nature of their work — deserve nothing less.
Downplaying the risks to worker health, the president’s April executive order delivered, resoundingly, for his allies in the meatpacking industry. Plants remained open, with inadequate safety measures and anemic enforcement. Profits poured in. Now thousands of workers are sick and hundreds have died, most with no recompense, at least thus far.
When a government tells a group of workers in the midst of a pandemic that their work is “essential” for the welfare of the country, it has at least two attendant obligations: to make sure their workplaces are safe from the spread of the virus to the greatest possible extent; and, when workers do succumb to the disease, to take care of them and their families. The president and his administration have utterly failed workers — in the meatpacking and the other “essential” industries — in both critical respects. We need to change course, and deliver the workplace protections, comp benefits and basic fairness these workers and their families deserve.
Michael Felsen left federal service after 39 years as an attorney with the U.S. Labor Department’s Office of the Solicitor, concluding his career as New England regional solicitor from 2010-2018. His office was charged with enforcing federal worker protection laws, including The Fair Labor Standards Act and the Occupational Safety and Health Act.
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