Cargill escapes fines for handling early COVID-19 outbreak

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Cargill will not have to pay nearly $20 million in damages for the way it handled the early months of the COVID-19 pandemic and the subsequent outbreak, which claimed the lives of two employees and a worker’s father.

The decision ends a four-year battle between the major meat producer and its workers union, which came in the wake of three deaths and 951 COVID-19 cases linked to meat processing plant workers — the largest single outbreak recorded during the pandemic.

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The three deaths related to the outbreak were 67-year-old shop steward Hiep Bui, 51-year-old shop steward Benito Quesada, and Armando Salleguy, the 71-year-old father of the Cargill employee.

In his June 10 decision, arbitrator James Casey wrote that the limited and rapidly changing information about the virus during the first months of the pandemic was a factor that weighed heavily on his conclusion that Cargill substantially fulfilled its obligations to ensure the health and safety of its High River employees.

When the pandemic hit, public health officials determined that food processing plants like Cargill's slaughterhouse were critical services and did not need to be closed. (At the time, Cargill's High River plant provided about 30 per cent of Canada's beef and 40 per cent of Alberta's supply.)

But the logistics of running a meat-packing plant safely were challenging: A facility like Cargill requires large numbers of employees to work together on an open production line, making it a high-risk infection zone. On the advice of public health bodies, Cargill had instituted a series of safety measures by late February 2020 to protect workers from droplet transmission and physical contact — two prevalent ways in which the scientific community believed COVID-19 spread at the time, Casey wrote.

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Casey wrote that that approach did not take into account the then-unknown reality that COVID-19 could spread through air or aerosol transmission, which was established much later in the pandemic. He pointed out that in April 2020, Alberta Health Services (AHS) wrote on its frequently asked questions page that COVID-19 was “not an airborne disease.”

“Employers, unions, government, and public health officials have had to work together to get this done,” he wrote.

'The fear in the community was enormous'

The first case at the plant was confirmed on April 6, after which United Food and Commercial Workers (UFCW) Local No. 401, which represents Cargill employees, called for the plant to be temporarily closed for two weeks. Across North America, 30 UFCW employees had already died. At the same time, members of High River's Filipino community wrote to the mayor urging him to persuade Cargill to close the plant.

“The fear in the community was overwhelming,” Casey wrote. Soon after, a large group of employees stopped coming to work while AHS formed a Cargill task force to contain the outbreak, though the public health body believed the risk of transmission at the plant was relatively low. AHS’s biggest concern was the spread of the infection from employees living together and carpooling, Casey wrote.

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On April 22, 2020, two days after the first employee died from the virus, Cargill temporarily closed the plant due to low attendance. Two days later, the UFCW filed a grievance, claiming Cargill was not meeting its obligation to provide a safe working environment.

The plant reopened in early May. On May 12, the union announced the death of a second worker. Less than a month later, on June 19, 2020, AHS determined that the Cargill outbreak had resulted in 902 COVID-19 cases — the largest in Canada in the first year of the pandemic. More than 1,500 cases were ultimately linked to the outbreak, with 951 workers testing positive — nearly half of the plant's entire workforce.

The arbitrator concluded that Cargill followed the advice consistent with what was known at the time

In filing its grievance for that two-month period, the UFCW demanded that Cargill pay $10,000 to each worker and $100,000 to the union. Since there were about 2,000 workers in the bargaining unit, the union was seeking damages of about $20 million.

Ultimately, in the 19-day mediation, the union called eight witnesses and Cargill presented six. “It is fair to say that the parties 'left no stone unturned' in their thorough investigation of Cargill's actions,” Casey wrote.

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The key issues in the arbitration were the state of public health knowledge at the time, and whether Cargill’s safety measures were effective given the mode of virus transmission.

Casey ultimately concluded that Cargill followed the advice of public health officials that was consistent with what was known about COVID-19 at the time. While the union argued that this advice was incorrect and therefore did not protect employees, Casey wrote that Cargill and health officials were relying on limited information at the time.

“Based on current scientific knowledge about COVID-19 and current regulatory advice, it is not appropriate to reconsider Cargill's decision,” they wrote.

Casey said Cargill failed to comply with its obligations to identify hazards and communicate with the joint health and safety committee to address those hazards, which is a direct violation of the Occupational Health and Safety Act. While he said it would not be appropriate to award damages for this violation, he said the company failed in a “narrow but significant way” to comply with its collective agreement.

He dismissed the remaining complaints.

Cargill and UFCW Local 401 did not immediately respond to Postmedia’s request for comment.

The Alberta RCMP announced in January 2021 that it was investigating Quesada's death. Mounties confirmed to Postmedia on Wednesday that the file has been closed and Quesada's death has been deemed non-criminal.

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