Nebraska legislators narrowly advanced legislation, that if enacted, would mandate basic COVID-19 safety measures at meatpacking plants.
State Senator Tony Vargas of Omaha introduced the bill to protect meatpacking workers. According to Vargas, 7382 meatpacking workers contracted COVID-19, 256 were hospitalized and 23 died due to the COVID-19 pandemic.
I support this legislation. Early on in the pandemic, I wrote about why I thought workers’ compensation laws weren’t suited to help workers effected by the pandemic. The bill includes requirements about reporting COVID-19 exposure which would aide in prosecuting workers’ compensation cases related to COVID-19.
But, the bill does not include a presumption of workers compensation coverage for COVID-19 exposure. One would think that relatively mild legislation would face little opposition. But that assumption would be wrong.
Somewhat unsurprisingly the arguments used by opponents of COVID-19 safety measure opponents mirrored arguments made by packinghouses in COVID-related litigation. Some legislators argued that the state should not regulate workplace safety in meatpacking houses because that was the job of the federal government. In short, the state was pre-empted from regulating safety conditions in meatpacking plants.
Tyson Foods made similar arguments about federal preemption in their defense to an Iowa state law case involving a lawsuit against Tyson for having their managers make bets on COVID-19 death tolls in an Iowa plant.
I think the preemption argument is specious because states clearly have the right under the 10th Amendment to make laws about health and safety. That’s the constitutional basis for workers’ compensation laws.
On the flip side, the basis for the federal government to regulate meatpacking stems from the interstate commerce clause. Meatpacking is one of many businesses in Nebraska engaged in interstate commerce. Under the theory advanced by opponents of safeguards for meatpacking workers, the state wouldn’t have the right to regulate those industries either.
Federal and state laws conflict all the time in matters of workplace safety and the effects of workplace injury. Meatpacking plants in Nebraska are largely operated by large multi-national firms with armies of lawyers who comply with all sorts of rules and regulations in different states and countries.
In my view, the packing plants exploited a gap in workers compensation laws to largely avoid paying COVID-19 benefits under workers’ compensation. The standards proposed by Senator Vargas are reasonable, constitutional and should have passed with little debate last year when they were originally proposed.