A former employee of a JBS beef processing plant will be reimbursed for wages he lost while sick with COVID-19 after winning a workers’ compensation case in Texas this week.
The case is potentially the first in the nation where a court determined that an employee caught coronavirus in the plant where he worked. The decision could influence similar workers’ compensation cases around the country, in which large meatpacking companies and their insurance companies have successfully argued that employees got sick outside of work.
Jose Tovar, the former JBS employee and plaintiff in the case, contracted COVID-19 in April 2020 and subsequently missed three weeks of work. American Zurich Insurance Co., JBS’s workers’ compensation insurance carrier, denied Tovar’s initial request for lost wages.
Tovar appealed the decision with legal representation from Texas RioGrande Legal Aid, and an administrative judge in Amarillo decided the case in favor of Tovar last month. JBS and its insurance company did not appeal the ruling by the May 18 deadline, making the decision final.
Hundreds of similar workers’ compensation claims around the country have not been paid out to workers, benefitting meatpacking companies and their insurance companies, many of which have argued that employees contracted the virus in the community rather than at work. In Minnesota, the Star Tribune found in February that, of the 935 Covid-related claims filed by meatpacking employees, none had been paid out to the workers.
David Muraskin — food project litigation director for Public Justice, a nonprofit legal organization that advocates for issues including workers’ rights and environmental protection — said the Texas case is the first he’s heard of in which a meatpacking worker was granted workers’ compensation after contracting COVID-19 in the workplace. The decision could influence similar workers’ compensation cases around the country, he said.
“This shows that everything that workers have been saying throughout the pandemic — that they were subjected to unsafe working conditions, that they were exposed to high risk, and that they were going to incur costs from having to address COVID, either through missing work or medical care, and in horrific circumstances death and the family’s loss of their loved ones — all is true.
“That’s what this is affirming. What workers have been saying throughout is now being confirmed by independent adjudicators who are recognizing that these companies put workers in harm’s way,” Muraskin said.
[Read more: Infected. Exhausted. Distressed.]
More than 3,400 people worked at the JBS plant in 2020. By June, almost one-third of the employees had contracted coronavirus, said Christopher Benoit, the TRLA lawyer representing Tovar.
“People died. People got really sick,” Benoit said. “As far as we know, and from our clients and what our expert said, the main thing that would be effective in reducing infections among workers is not just masks but also social distancing because it’s an exceptionally crowded workplace.”
He said JBS made some improvements by installing plastic barriers between workers, but only after facing public pressure.
“They never stopped having workers group together, and that working environment was the reason why people got sick,” Benoit said.
In an emailed statement, JBS spokesperson Cameron Bruett said there are currently no active cases at the Cactus facility, where Tovar worked, and more than 65 percent of the workforce has been vaccinated.
“We continue to protect our team members by maintaining all of our in-plant preventive measures and launching a vaccination program that includes onsite clinics, paid time off, a $100 bonus for anyone who chooses to be vaccinated, providing free transportation to offsite clinics and launching multilingual educational campaigns,” Bruett said.
After this story was published, JBS sent an additional statement that said Tovar wasn't paid last year because of a "processing error."
"In the instance referenced, Mr. Tovar was compensated for the time he was away from work, consistent with our policy. Team members who test positive for COVID-19 are eligible for short-term disability, and the company covers 100% of all COVID-related health expenses for those enrolled in our health insurance plan," Bruett said. "Unfortunately, due to a processing error at the facility, Mr. Tovar did not receive his full payment in a timely fashion per our policy. As soon as this error was discovered, Mr. Tovar was compensated for his time away from work."
The Occupational Safety and Health Administration fined the JBS facility in Cactus $1,928 in October after an employee died of COVID-19.
JBS is the largest beef producer and the second-largest producer of poultry and pork in the U.S., according to the company’s website. In total, at least 4,300 JBS employees have contracted coronavirus, according to Midwest Center tracking.
The key to winning the case was the testimony of epidemiologist Dr. Melissa Perry, who calculated the risk of Tovar contracting coronavirus in the plant, where he worked alongside people who had tested positive, and in his personal life, where he had a much lower exposure to the virus, Benoit said. This convinced the judge that Tovar not only caught COVID-19 at work, but also that JBS was responsible for exposing Tovar to a high-risk work environment.
The judge ruled that Tovar “could reasonably only have been infected at work,” according to a TRLA news release.
“I am happy that a judge found that JBS's insurance company needed to be held accountable for what happened to me, and I hope they will be held accountable for the many other workers who became seriously ill at the JBS plant,” Tovar said in the news release.
UPDATE: This story was updated on May 21, 2021. Minutes after this story was published, JBS sent an additional statement with more details about Tovar's case.