Glenn v. Tyson Foods, No. 21-40622 (5th Cir. 2022)
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Plaintiffs alleged that they contracted COVID-19 while working at two Tyson Foods, Inc (“Tyson”) facilities in Texas during the first few months of 2020. Some of them died as a result. They alleged that Tyson failed to follow applicable COVID-19 guidance by directing employees to work in close quarters without proper protective equipment. They also alleged that Tyson knew some of its employees were coming to work sick with COVID-19 but ignored the problem and that Tyson implemented a “work while sick” policy to keep the plant open.
Tyson argued that it was “acting under” direction from the federal government when it chose to keep its poultry processing plants open during the early months of the COVID-19 pandemic and that the district courts erred in remanding these cases back to state court.
The Fifth Circuit affirmed the district court's orders. The court explained that Tyson received, at most, strong encouragement from the federal government. But Tyson was never told that it must keep its facilities open. The court wrote that from the earliest days of the pandemic all the way through the issuance of Executive Order 13917, the federal government’s actions followed the same playbook: encouragement to meat and poultry processors to continue operating, careful monitoring of the food supply, and support for state and local governments. Tyson was exhorted, but it was not directed. Thus, Tyson has not shown that it was “acting under” a federal officer’s directions” and so the court need not consider whether it meets the remaining elements of the federal officer removal statute.
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