News Channel Nebraska reported last week the State of Nebraska would no longer report COVID-19 exposures from individual meatpacking plants.
Five Nebraska counties with major meatpacking plants – Dakota, Dawson, Colfax, Hall and Saline, ranked in the top 31 of highest per capita exposure to COVID-19, the New York Times reported last Thursday.
Nebraska Governor Pete Ricketts cited confidentiality concerns as the reason for the order. But, Ricketts decision seemed geared towards deflecting widespread criticism of meatpacking houses for their role in spreading COVID-19. Pro Publica reported last week that Ricketts refused a request from public health officials in Grand Island to shut down a JBS Swift plant over COVID-19 concerns.
Secondly, OSHA guidance appears to exempt meatpackers from having to log COVID-19 exposure as an occupational injury. Standards for logging an injury for OSHA and reporting it to the Nebraska Workers’ Compensation Court tend to blur. Because of the guidance from OSHA, I suspect companies will under-report work injuries to state workers’ compensation courts.
Workplace safety and public health
The prevalance of COVID-19 in packinghouse towns has lead the general public to connect public health and workplace safety. The issue of workplace safety will need all the attention and public support it can garner. It appears as if corporate American wants to protect companies for COVID-19 exposure litigation. I believe this immunity could cover workers’ compensation.
In my job, I spend a fair amount of time in both Grand Island and Lexington litigating against JBS and Tyson. Because of that experience, I’ve watched in anger/horror as COVID-19 tears through these communities. In my view, the same indifference that Tyson and JBS show about joint and muscle injuries has been shown about COVID-19.
Skirting the exclusive remedy of workers’ compensation
Part of my anger about COVID-19 in Lexington and Grand Island goes to the difficulty of recovering workers’ compensation benefits for COVID-19. Workers’ compensation laws provide little deterrent for packinghouses to limit COVID-19 exposure. Even if an employee can prove on the job exposure, workers can collect limited benefits from workers’ compensation. Workers’ compensation benefits are limited because employees are supposed to collect them without regard to fault.
Limited in benefits in exchange for not proving fault is at the heart of the so-called grand bargain of workers’ compensation. Workers compensation benefits are generally the exclusive remedy employees have for workplace injury and illnesses.
But a public nuisance claim skirts the problems with workers’ compensation laws. A public nuisance claim sues the packinghouses not for how they treat their workers, but for how their treatment of their workers effects the surrounding community. Exclusive remedy means that the workers can only sue their employers for a workplace injury or illness under workers’ compensation. Workers can only collect limited benefits from workers’ compensation.