Smithfield pushes to quash OSHA subpoena during probe of COVID-19 outbreak

Smithfield Foods is asking the courts to intervene in a federal investigation into the COVID-19 outbreak at its Sioux Falls plant.

Smithfield put Sioux Falls in the national spotlight this spring when the fast spread of the novel coronavirus among its employees forced the company to temporarily close the local pork processing plant.

Officials for the United States Occupational Safety and Health Administration (OSHA) subpoenaed South Dakota state health officials last month, requiring them to turn over any test results, correspondence with Smithfield representatives or photos of the plant.

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Smithfield responded by asking the U.S. District Court of South Dakota to quash OSHA’s subpoena, according to documents filed Thursday.

Smithfield defended its request to the courts by saying OSHA’s investigation would damage how it and other companies work with government agencies in their response to the COVID-19 pandemic. Smithfield representatives say the company gave the South Dakota Department of Health information only because of an agreement that the information would be “adequately protected,” according to court records.

“The subpoena raises significant public policy implications relevant to the nation's ongoing response to COVID-19 and, if enforced without limitation or procedural safeguards, will undoubtedly chill critical collaborations between essential employers and public health agencies going forward,” Smithfield said in its motion to quash.

The pork processing company also invoked the privacy of its employees, more than 850 of whom tested positive for coronavirus.

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OSHA started investigating the plant in April and has conducted interviews with leadership and staff as well as touring the plant. The administration has subpoenaed Smithfield twice for the production of documents, first in April and again in June, all with cooperation from the pork processor, according to Smithfield’s motion.

Smithfield alleges OSHA’s most recent subpoena is a violation of its due process rights, that it violates OSHA’s own safeguards for employers and that the information request isn’t relevant to the agency’s investigation.

As part of its motion, Smithfield recommended to the courts that it be allowed to review the state’s response to the subpoena to redact any confidential information. Department of Health officials have agreed to Smithfield’s request, should it become a possibility, according to court records. Smithfield asked the same of OSHA before bringing the matter to court, but was met with a “flat refusal,” according to court documents.

“We believe the information sought from the state is both relevant and necessary to OSHA’s ongoing, administrative inspection of the Smithfield Sioux Falls plant,” U.S. Department of Labor attorney Jennifer A. Casey wrote in an email to Smithfield’s attorneys. “OSHA is still gathering documents and testimony to fully understand Smithfield’s response to the Covid-19 pandemic. This is not an adversarial proceeding; rather, an administrative process in which OSHA has the authority, and statutory obligation, to collect and analyze evidence to determine whether Smithfield has complied with provisions of the Occupational Safety and Health Act.”