The U.S. Court Appeals for the Fifth Circuit has returned to a federal court a lawsuit alleging that Tyson Foods was negligent in providing COVID protection for workers. The three-judge panel reversed the ruling of a district court dismissing workers’ claims.
At issue are the complaints by 41 employees of the Tyson Foods Inc. Amarillo, TX plant claiming that the Company continued slaughter operations despite an ascending incidence of COVID and was negligent in not supplying adequate personal protective equipment.
Tyson Foods claimed that it was acting under the direction of the federal government, a decision rejected by the Appeals Court. In their ruling the judges stated, “We concluded that Tyson was not acting under the direction of the federal government and that the federal officer removal jurisdiction thus did not exist over claims materially identical to those at issue here.” The Appeals court added, “We reason that although the food industry is designated as critical infrastructure, the federal government’s guidance to critical infrastructure industries was nonbinding.”
As a matter of record, Tyson Foods was proactive in providing protection for workers at a time when there was minimal guidance from the CDC or the USDA concerning in-plant transmission of COVID. The Company was a pioneer in establishing employee testing through third-party providers and granted liberal benefits and support for those contracting the infection. Tyson Foods promptly arranged for mass immunization of employees when COVID vaccine was approved and released, subsequently mandating vaccination as a condition of employment. Through September 2020 Tyson Foods incurred $700 million in costs associated with protection and remuneration of workers following the emergence of COVID.