On April 28, 2020, President Trump issued an Executive Order (EO) aimed at keeping beef, pork, and poultry processors operating during the COVID-19 public health emergency while following guidance on the operation of such facilities jointly issued on Sunday, April 26, 2020 by the Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA).
The EO invokes authority pursuant to Section 101 of the Defense Production Act of 1950 and finds that beef, pork and poultry are “scarce and critical materials” under the Act. The EO authorizes U.S. Department of Agriculture Secretary Sonny Perdue to take “all appropriate action to ensure that meat and poultry processors continue operations” consistent with CDC and OSHA guidance during the national emergency.
Significantly, the EO also delegates authority to Sec. Perdue to invoke the Defense Production Act with respect to “additional specific food supply chain resources” that meet the same criteria. Although there are as of yet no indications from USDA that the agency planned to exercise this authority at this time, other food processors, such as dairy, fruits and vegetables are lining up to seek inclusion.
The EO cites recent closures of processing plants as threatening a continued supply of proteins for Americans. The EO states that reduction in processing capacity and complete closure of some processing facilities “may differ from or be inconsistent with” CDC and OSHA interim guidance providing for the operation of such facilities.
“Under the Executive Order and the authority of the Defense Production Act, USDA will work with meat processing [sic] to affirm that they will operate in accordance with the CDC and OSHA guidance, and then work with state and local officials to ensure that these plants are allowed to continue to operate to produce the meat protein that Americans need,” USDA said in a statement. USDA expects to make further information and details available soon.
It was widely reported that the President indicated the EO would contain provisions limiting meat and poultry processors’ liability from workforce exposure claims, but no such language was included in the final EO. However, such claims will certainly be made more difficult (i) if the employer is a meat or poultry processor covered by the EO (or similarly designated in the food sector by Sec. Perdue) and (ii) the employer follows the CDC and OSHA guidance for operating such facilities.