After months of waiting, labor advocates disappointed new OSHA rule excludes food system workers

After months of delay, the Biden administration on Thursday released a rule dictating how employers in the healthcare sector should protect workers from the spread of Covid-19. The exclusion of meatpacking, food processing, farm, and grocery retail workers from the new workplace standards sparked an outcry from worker advocacy groups and unions.

Since the start of the pandemic, congressional Democrats and labor advocates have pushed the Occupational Safety and Health Administration (OSHA), an agency of the Department of Labor, to enact a so-called emergency temporary standard (ETS) that would require employers to comply with enforceable workplace safety protocols to protect workers from the spread of Covid-19. Advocates for food production and retail workers, who have been among the highest-risk occupational groups throughout the pandemic, have advocated that those sectors be a top enforcement priority for OSHA.

In January, President Biden directed OSHA to explore the possibility of an ETS and to issue the rule by March 15, making Thursday’s announcement nearly two months overdue. In the past several months, some states have passed their own workplace safety standards that exceed the federal voluntary guidelines. Yet in at least one state with its own ETS, California, regulators have rolled back some of the stricter requirements under pressure from business interests.

The new rule will require healthcare employers to provide masks and enforce mask wearing, ensure six-foot physical distancing, meet cleaning and ventilation standards, enact daily Covid-19 screening protocols, and notify employees of Covid-19 exposure. It also requires employers to provide pay and benefits to workers who are sent home because of exposure to the virus, and to ensure paid time away for employees when they are getting vaccinated or if they experience vaccine side effects. Employers will have two weeks to comply with most of the new standards.

Advocates are disappointed that the ETS excludes workers at meatpacking and food processing plants, one of the groups of essential workers most affected by the pandemic. FERN has tracked more than 90,000 cases of Covid-19 and 400 worker deaths from the virus to nearly 1,500 food and farm workplaces across the country.

“After what we saw last year, and how exposed these workers have been, and how little protection they had, it’s just outrageous that they are not taken into consideration,” said Magaly Licolli, executive director of Venceremos, an Arkansas-based poultry-worker advocacy group. “It just speaks to the power that the companies have over the government.”

Records from the Office of Information and Regulatory Affairs show that OSHA held meetings about the ETS from late May to early June with food industry and labor groups. OSHA met with industry groups including the North American Meat Institute (NAMI), the National Restaurant Association, the American Farm Bureau Federation, Western Growers, and the National Fisheries Institute. The agency also met with the National Employment Law Project, the United Food and Commercial Workers union (UFCW), Farmworker Justice, the National Council for Occupational Safety & Health, and Oxfam.

NAMI, the largest meat industry trade group, explained in a letter following its meeting with OSHA on May 6 that there would be “significant adverse economic consequences” if the ETS were to include enforceable requirements for meatpacking companies. A NAMI spokesperson said its members “are continuing to follow OSHA and CDC guidelines and are encouraging employees to get vaccinated” but did not explain what the economic consequences of an ETS would be to meatpackers.

The trade group also argued that meatpackers’ efforts to protect workers from the spread of Covid-19 are responsible for a dramatic reduction in new worker cases compared to last spring, when the virus sickened tens of thousands of workers in a matter of weeks. FERN data show a steady decline in the number of new food system worker cases over the past several months, though it is still impossible to get a full picture of worker illness due to a lack of data collection and disclosure from public health agencies and the food industry.

Marc Perrone, international president of the UFCW, which represents thousands of grocery and meatpacking workers, called the ETS “a broken promise.”

“The current COVID safety guidelines in place are unenforceable and leave millions of essential food, retail, and pharmacy workers to fend for themselves as they face hundreds of potentially unvaccinated customers every day,” Perrone said in a statement. “What was released by the administration completely ignores the health threat grocery and meatpacking workers are still confronting as they bravely serve our communities and keep our food supply secure.”

The UFCW will advocate for OSHA to increase its inspections in grocery, meatpacking, and healthcare facilities, he said. The union has counted 377 deaths from Covid-19 among its meatpacking, food processing, and grocery retail members, and reports that more than 158,000 of its members in those sectors have contracted or been exposed to the virus.

Food system workers are in particular need of more stringent pandemic workplace protections, because they “are among the most at risk and most underpaid workers, and disproportionately are people of color and immigrants, so they are especially vulnerable to employer exploitation,” said Suzanne Adely and Sonia Singh, co-directors of the Food Chain Workers Alliance, in a statement. “As states and cities end mask requirements and other COVID-19 precautions, food workers are already being exposed to risks like unmasked and unvaccinated customers, or reduced cleaning in their workplaces. Now more than ever, our elected leaders must hold corporations accountable to protect workers.”

At least one member of Congress also criticized the limited scope of the ETS.

“This ETS is long past due, and it provides no meaningful protection to many workers who remain at high risk of serious illness from COVID-19,” said Rep. Bobby Scott, chairman of the House Education and Labor committee, in a statement. “Workers in meat processing plants, prisons, homeless shelters, grocery stores, and many other workplaces will be forced to continue relying on voluntary safety guidance, which has failed to protect hundreds of thousands of workers and families from preventable infections throughout the pandemic. … With vaccination rates for Black and Brown people lagging far behind the overall population, the lack of a comprehensive workplace safety standard and the rapid reopening of the economy is [a] dangerous combination.”