Interpreting the word games at play in workplace safety guidelines, President Trump’s recent executive order on the food supply chain, and company motives is something like unpacking a Russian doll. The name of these Russian nesting dolls is Matryoshka or Babushka. Babushka means grandmother or old woman. This name is ironic because a lot of workers in these food plants are women. Often, these elaborately crafted dolls follow a theme, including Russian leaders. Maybe, in this case, one could make them American leaders of states that do not respect workers (hat tip to Assistant Professor Warigia Bowman of the University of Tulsa College of Law for the observation).

Let’s explore.

I. The Big Doll

On April 28, 2020, as part of declaring meat supply “critical” and with the aim of reopening plants, President Trump issued the Executive Order on Delegating Authority Under the DPA [Defense Production Act] with Respect to Food Supply Chain Resources During the National Emergency Caused by the Outbreak of COVID-19.

Among the reasons given in the Executive Order for the action were (1) the outbreaks of COVID-19 among workers at some processing facilities that have led to the reduction of some facilities’ production capacity and (2) recent actions in some states that have led to the complete closure of some large processing facilities.

In response to these developments, the executive order states that:

Such actions may differ from or be inconsistent with interim guidance recently issued by the Centers for Disease Control and Prevention (CDC) of the Department of Health and Human Services and the Occupational Safety and Health Administration (OSHA) of the Department of Labor entitled “Meat and Poultry Processing Workers and Employers” providing for the safe operation of such facilities.

II. The Next Smallest Doll

Now if one turns to the CDC and OSHA guidance that has been provided to meat-packing plants, one sees a series of what can only be termed mealy-mouthed phrases on worker safety, to wit:

Configure communal work environments so that workers are spaced at least six feet apart, if possible.

Modify the alignment of workstations, including along processing lines, if feasible, so that workers are at least six feet apart in all directions (e.g., side-to-side and when facing one another), when possible. Ideally, modify the alignment of workstations so that workers do not face one another. Consider using markings and signs to remind workers to maintain their location at their station away from each other and practice social distancing on breaks.

Use physical barriers, such as strip curtains, plexiglass or similar materials, or other impermeable dividers or partitions, to separate meat and poultry processing workers from each other, if feasible.

Facilities should consider consulting with a heating, ventilation, and air conditioning engineer to ensure adequate ventilation in work areas to help minimize workers’ potential exposures.

If fans such as pedestal fans or hard mounted fans are used in the facility, take steps to minimize air from fans blowing from one worker directly at another worker. Personal cooling fans should be removed from the workplace to reduce the potential spread of any airborne or aerosolized viruses. If fans are removed, employers should remain aware of, and take steps to prevent, heat hazards.

Place handwashing stations or hand sanitizers with at least 60% alcohol in multiple locations to encourage hand hygiene. If possible, choose hand sanitizer stations that are touch-free. See OSHA’s Sanitation Standard (29 CFR 1910.141), which requires employers to provide handwashing facilities for workers [emphasis added].

Reading the executive order and the CDC/OSHA guidance together, one sees that the order is concerned with differences or inconsistencies between what is happening at the meat-packing plants and the guidance. This would seem to be a valid  point. However, the guidance has so much precautionary language that it leaves a significant amount of discretion to the management of the meat-packing facility as to how it will protect the workers. This problem was discussed at length on the Rachel Maddow Show on April 28, 2020.

And, so workers get sick and workers die if they go back to work.

III. The Next Smallest Doll

A company that reopens or increases production may say to laid-off workers that it is seeking volunteers to come back. That way, the worker who “volunteers” is in some sense assuming a risk in going back to the workplace, thus providing a defense for the company if anything happens to them on the worksite.

With respect to volunteering, the unemployed worker is faced with the Hobbesian choice between protecting their health or going back to an unhealthy workplace where a COVID-19 pandemic is rampant.

IV. The Next Smallest Doll

If there is a job available and a worker does not take it, there are reports that some governors are saying that the unemployed worker will no longer be entitled to unemployment compensation and maybe even more.

Under the CARES act, these workers are almost certainly getting more in unemployment benefits than they would have in wages.

The CARES act created the Federal Pandemic Unemployment Compensation (FPUC) program, which provides a fixed or flat amount of $600 to state-level unemployment benefits. Because the FPUC payment is a defined amount, the result is that workers with wages of about $55,000 a year or less will actually receive more in unemployment benefits than they would have in wages.

Each state’s unemployment benefit level is different, some states have extremely low unemployment benefits. While the numbers change by state, the same issue applies everywhere.

A Texas example: an employee who earned about $30,000 a year, would have wages of roughly $600 a week. The standard unemployment benefit would have been roughly $300 a week. The FPUC adds a flat $600 a week on top, so the worker now gets unemployment benefits of $900 a week. The worker is substantially better off receiving unemployment benefits than working.

However, two factors limit this odd situation.

The FPUC benefit expires on July 31, 2020, so the impact of the program is relatively short-lived.

The Department of Labor issued guidance to the states earlier this week indicating that a laid off or furloughed employee who refuses to come back to work in order to keep drawing the higher unemployment benefits would be disqualified from receiving benefits at all (hat tip to Robert C. Rice for this line of analysis).

So not only is the Hobbesian choice one about whether to protect one’s health (and under community spread those in your family and those with whom one has contact) or go to an unhealthy workplace but also, if one chooses to protect one’s health one loses money thus endangering one’s ability to feed oneself and one’s family.

V. The Next Smallest Doll

And if by some happenstance the worker gets sick and/or dies, there may be arguments about whether the worker actually contracted COVID-19 at the workplace or out in the community as a way to deny liability for the worker’s sickness and/or death.

And because people with COVID-19 may die of underlying problems that are made more severe by COVID-19, even if COVID-19 can be proved to have been contracted at the plant, the question will be raised as to whether a given sickness or death is a “true” COVID-19 sickness or death.

VI. The Next Smallest Doll

Moreover, with reopening being subject to the Defense Production Act, the plant could assert a form of governmental contractor qualified immunity (similar to the Agent Orange cases from the Vietnam era) or in the torture cases.

VII. The Next Smallest Doll

And if that is not good enough, there is an effort by business groups to get Congress to pass legislation to limit liability for COVID-19 for reopening.

VIII. The Moving Pieces

This seven-level set of word games leads to worker endangerment NOT worker protection. And so the rules and structures to protect worker health and safety end up actually countenancing worker sickness and death.

IX. We Have Seen This Before — Will We Do Something This Time?

We have seen this kind of word gaming in the torture memos of nearly 20 years ago.

We have seen this kind of word gaming in the guidance for reopening discussed in a prior JURIST guest academic commentary.

But, as any semanticist will tell you, the word is not the thing so we should not be duped by these word games.

The thing is that this unsophisticated mind gaming leads to worker sickness and death: one begins to see evidence of the kind of mens rea and actus reus of an international crime: a crime against humanity.

Looking at the definition of crimes against humanity in the Statute of the International Criminal Court one would note that the definition under Article 7(1) states:

1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

2. For the purpose of paragraph 1:

(a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack [emphasis added].

If the local or national worker protection laws as applied do not, in fact, protect workers but endanger them and if the courts turn a deaf ear to the pleas of these workers in harm’s way, we may be at a time when an international tribunal with appropriate jurisdiction as well as regional and international human rights bodies of the UN should weigh in on behalf of these workers. These workers who appear to be abandoned to the wolves of COVID-19 by their employers.

Local law possibilities can be promising as we can see from the recent decision in France of April 24, 2020, of the Court of Appeals of Versailles against a French Amazon subsidiary with respect to its warehouse workers. One union and then a group of unions brought complaints about the health and safety of the warehouses in light of the COVID-19 pandemic. The dispositive judgement the Court of Appeals states:

The Court of Appeals confirmed the decision of the prior judge of urgent matters ordering Amazon to evaluate with the workers the workplace risks inherent to the COVID-19 pandemic in all of its warehouse facilities and ordering them to put in place measures to protect the health and safety of workers pursuant to the labor code. While awaiting the putting in place of those measures, in a de novo decision the Court of Appeals went on to order Amazon, within 48 hours of the notification of the decision, to limit the activity of its warehouses to only receiving merchandise, preparing and delivering of orders for a narrow, authorized subset of products in the Amazon catalog. The Court of Appeals went even further pronouncing that after this 48-hour period a fine of €100,000 will be due for each reception, preparation and or delivery of products that were not authorized, and this for a maximum period of one month after which the court might decide again on this matter. All costs were borne by Amazon.

However, if local law possibilities do not provide relief or only piecemeal relief in the context of a worldwide pandemic, if we care about workers we might need consider taking  a more international or transnational level to fully comprehend the possible human rights violations that may be leading to their sickness and death for profit.

Benjamin G. Davis is a Professor of Law at the University of Toledo College of Law specializing in International Law and Alternative Dispute Resolution. He contributes to JURIST and the SALTLAW Blog.

Suggested citation: Benjamin G. Davis, Worker Endangerment in the Meat Industry During COVID-19, JURIST – Academic Commentary, April 30, 2020, https://www.jurist.org/commentary/2020/04/ben-davis-worker-endangerment-during-covid-19

This article was prepared for publication by Megan McKee, JURIST’s Executive Director. Please direct any questions or comments to her at commentary@jurist.org