The Tyson processing plant in Glen Allen is one of 122 meat processing facilities in Virginia. (Sarah Vogelsong/Virginia Mercury)
Faced with court rulings that say a Trump administration directive doesn’t protect Tyson Foods from liability caused by workers’ deaths due to COVID-19, the food giant is now asking the U.S. Supreme Court to weigh in on the matter.
Arguing that recent court rulings against the company will have “drastic consequences for the next national emergency,” Tyson has told the nation’s high court that private companies “will not be so eager to willingly aid the federal government in a crisis” if those rulings are allowed to stand.
A recent decision by the U.S. Court of Appeals for the Fifth Circuit, which echoed a decision last year by the Eighth Circuit appeals court, found the Trump administration’s March 2020 efforts to keep meatpacking plants open during the pandemic don’t shield the company from lawsuits alleging negligence.
Tyson works to move workers’ lawsuits to federal court
Those and other court decisions have paved the way for workers’ lawsuits against Tyson to be heard by state courts in Iowa, Texas and elsewhere, despite the company’s efforts to move the cases to federal court.
Court filings suggest that Tyson believes its argument that it was only doing business under the direction of the federal government will prove to be a more effective defense in federal court than in state court.
Trump’s March 2020 directive stated the Secretary of Agriculture had to “take all appropriate action” to ensure that the nation’s meat and poultry processors continued operations during the pandemic, but the companies had to operate in a manner that was consistent with guidance offered by the Centers for Disease Control and Prevention. The directive stopped short of ordering the plants to remain open.
Tyson has since been hit with what it calls “a wave of litigation from former employees or representatives of former employees alleging that they contracted COVID-19 because Tyson kept its plants operating in unsafe conditions.”
In Virginia, poultry plants on the Eastern Shore and in the Shenandoah Valley became hotspots for COVID-19 outbreaks in the early months of the pandemic, giving rise to more than 1,200 cases and 10 deaths in largely minority and socioeconomically disadvantaged communities. Plantwide testing at Tyson’s Temperanceville facility in Accomack County in May 2020 detected COVID-19 in roughly one-fifth of almost 1,300 employees screened.
Despite the outbreaks and Tyson’s voluntary release of testing data that May, Virginia officials consistently refused to release case counts for individual meatpacking facilities throughout the pandemic, citing state code provisions aimed at protecting the anonymity of individual patients. In emails obtained by the Virginia Mercury through a Freedom of Information Act request, state officials discussed companies’ insistence “that plants not be identified publicly as having outbreak(s)” and that facility-wide test results not be shared.
In the current court filings, Tyson’s stance is that since the plants continued to operate “at the direction of federal officers at the highest levels,” the federal courts must resolve any claims related to injuries and deaths that stemmed from that action.
In May, Tyson filed with the U.S. Supreme Court a petition seeking an extension of time in which it could file a petition for a writ of certiorari in a case involving a deceased Waterloo plant worker, Sedika Buljic. In that case, the appeals court for the Eighth Circuit had affirmed a decision sending the matter to state court, stating the company was not “acting under” a federal officer in keeping its plants operating.
Tyson argues rulings jeopardize future cooperation in a crisis
In its filings with the U.S. Supreme Court, Tyson now argues it was merely following “the federal government’s instructions to help avert an impending national food shortage,” adding that the Eighth Circuit’s ruling “will have drastic consequences for the next national emergency.”
Tyson says private companies “will not be so eager to willingly aid the federal government in a crisis” if they first must obtain a formal command to remain open and thus be entitled to a federal forum in which to defend any actions they took at the behest of the federal government.
On Friday, the company filed its writ with the court, according to Bloomberg Law, although that filing has yet to be posted to the court’s official website.
The Supreme Court receives more than 7,000 petitions for a writ of certiorari each term, but agrees to hear arguments in roughly 80 cases, according to the court.
Just last week, three Iowa lawsuits against Tyson were moved from state court to federal court. The plaintiffs are the families of Victor Barahona Rivera, who died on June 15, 2020 after working at Tyson for 27 years; Ken Jones, a 12-year Tyson employee who died on June 3, 2020; and Juan Jauregui Samudio, a five-year employee of Tyson who died on June 10, 2020.
The families allege Tyson was fully aware of the risks associated with COVID-19, but continued to expose workers to contamination by forcing them to work within six feet of one another without proper barriers between them or adequate personal protection equipment. They also claim Tyson imposed inadequate disinfecting and sanitizing procedures and failed to implement COVID-19 testing and screening.
Each of the three lawsuits names plant manager Rick Retzlaff, plant superintendent Nathan Carnine, plant safety manager Jorge Sandoval and area safety manager Laurie Garcia as defendants.
Tyson denies the allegations. According to court records, the company has denied the families’ claims for workers’ compensation benefits.
Mercury editor Sarah Vogelsong contributed to this story. This article originally appeared in the Iowa Capital Dispatch, a sister publication of the Virginia Mercury within the States Newsroom network.
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