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Duff: No Wonder They Want Immunity

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As I read through Michael Grabell, Claire Perlman and Bernice Yeung’s ProPublica article on COVID-19 chaos in the meatpacking plants, I kept thinking three things:

  • Michael C. Duff

    Michael C. Duff

    A broad liability shield is a really bad idea.
  • Yes, I do think I could win these workers’ compensation claims without the aid of a causation presumption.
  • Sometimes federalism looks really, really bad:

In an emailed response to questions, Tyson acknowledged the delay in releasing the test results in North Carolina. “When we learned that there was a delay with our lab partners, we acknowledged the urgency of the situation and worked to address the situation immediately,” spokesman Gary Mickelson said.

He said Tyson formed a coronavirus task force in January to assess risks and work on mitigation plans and began engaging with the CDC and other health officials shortly thereafter. “At the majority of our facilities across the country, there have been no cases of COVID-19 that we know of,” he said. ProPublica found cases at slightly less than half of Tyson’s major processing plants.

But the scores of emails and other records show that best practices to protect workers, such as slowing the processing line to accommodate social distancing, installing plexiglass barriers and having workers wear masks, weren’t implemented until outbreaks began to occur. Instead, meatpacking companies spent crucial early weeks urging officials to keep their plants open.

In mid-March, a few weeks before a massive outbreak at its South Dakota pork plant, Smithfield Foods’ Chief Executive Kenneth Sullivan sent a letter to Nebraska Gov. Pete Ricketts saying he had “grave concerns” that stay-at-home orders were causing “hysteria.”

“We are increasingly at a very high risk that food production employees and others in critical supply chain roles stop showing up for work,” Sullivan wrote. “This is a direct result of the government continually reiterating the importance of social distancing, with minimal detail surrounding this guidance.”

“Social distancing,” he added, “is a nicety that makes sense only for people with laptops.”

The piece is a must read.

Michael C. Duff is associate dean for student programs and external relations, and is professor of law, at the University of Wyoming College of Law. This entry is republished from the Workers' Compensation Law Professors blog, with permission.

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