An executive order designed to keep meatpacking and poultry plants up and running during the COVID-19 pandemic is likely to produce legal fights over who sets public health standards to protect workers and communities.
Lawrence Gostin, director of Georgetown University’s global health law center, said President Donald Trump’s order on Tuesday could launch “a clash between the powers of the president and the powers of the states.”
Gostin said the executive order is unclear about the role that state and local governments will play in monitoring the facilities, which have become so-called hot spots as hundreds of workers test positive for the virus that causes COVID-19.
Ann S. Rosenthal, a Labor Department attorney for 40 years and its top occupational attorney at her departure, said the order was confusing but probably would give beef, pork and poultry companies a tool to fight state and local COVID-19 policies that could interfere with operations.
“It may intimidate some states who may otherwise be willing to close them,” said Rosenthal, who retired in 2018. “If a state health department wants to order a plant to close on similar grounds, I think this could complicate that as a practical matter because the plant could start raising all kinds of objections.”
The executive order invokes the Defense Production Act, declares the processing and packing plants part of the nation’s critical infrastructure and says the plants are to follow nonbinding guidelines to limit the spread of COVID-19 among workers issued April 26 by the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration.
Gostin said the courts could deliver a split decision in any legal action to clarify state and local governments’ roles under Trump’s directive. For example, he said, courts could rule that state and local governments can enforce their health regulations but cannot force a facility covered by the executive order to shut down.
For Paula Schelling, acting president of American Federation for Government Employees Council 45, the executive order does little to aid the 6,500 Food Safety and Inspection Service inspectors who belong to her union.
“The health and safety of federal inspectors and plant workers is in the hands of an industry that the administration is now pressuring to stay open, no matter the costs,” Schelling said in a statement. “Federal food inspectors entering slaughterhouses and meat processing facilities lack basic protective equipment, including face masks and hand sanitizer, and social distancing is impossible since they must work nearly shoulder-to-shoulder with front-line plant employees,” Schelling said.
The executive order authorizes the Agriculture Department as the lead federal agency to take “all appropriate action to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA.” The order also seems to open the door for Agriculture Secretary Sonny Perdue to put more of the food supply chain under the Defense Production Act, with language that he “may identify additional specific food supply chain resources that meet” the law’s criteria.
The meat and poultry industry as well as some members of Congress welcomed the order. Hog producers, in particular, say they have been hard hit by indefinite plant closures to clean and sanitize facilities after workers tested positive for the coronavirus and contracted COVID-19.
The closures or slowdowns in plant operations mean fewer hogs going to slaughter. This has left farmers with growing numbers of market-ready animals that are expensive to feed and will no longer be sellable once they top 300 pounds because most plants cannot handle hogs that size. Farmers have begun destroying animals.
“While getting pork packing plants back online is foundational, the tragic reality is that millions of hogs can’t enter the food supply,” National Pork Producers Council President Howard “A.V.” Roth said in a statement Wednesday. “Hog values have plummeted to virtually zero and hog farmers are facing liquidation of their farms and other assets without immediate relief, including expanded financial aid without payment limitations.”
House Agriculture Chairman Collin C. Peterson said he wants plants to reopen quickly but said the executive order cannot force workers to return to closed plants.
“I think the biggest problem for these plants is getting workers to be willing to come back. They’ve got to feel like they’re safe,” Peterson said Wednesday after visiting a JBS USA plant in Worthingon, Minn., where 3,000 hogs were destroyed. The plant recently closed for commercial slaughter.
“At the end of the day, the workers are going to have be protected in order to open this plant,” Peterson said.