By James L. CurtisMark A. Lies, IIAdam R. Young, Matthew A. Sloan, and Craig B. Simonsen

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Seyfarth Synopsis: Last week, the President issued an Executive Order under the Defense Production Act of 1950 to protect the continued operation of the nation’s meat and poultry processors during the current COVID-19 emergency consistent with OSHA’s and the CDC’s joint guidance. OSHA will use discretion in enforcing the joint guidance and does not anticipate citing employers adhering to the guidance.

COVID-19 outbreaks at many of the nation’s meat and poultry processing facilities have led to reduction in production capacity and, in some cases, complete closures of facilities. This has impacted the nation’s supply of meat and poultry, causing shortages and increased prices.

In response to the impact on the nation’s food supply chain, on April 28, 2020, President Trump issued an executive order under the Defense Production Act of 1950 (“the Act”) delegating authority to the U.S. Secretary of Agriculture 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 President also delegated authority to identify “additional specific food supply chain resources” requiring protection under the Act.

We previously blogged on the interim guidance provided by OSHA and the CDC to protect the nation’s meat and poultry industry employees. OSHA and the CDC found that close and prolonged contact between employees on processing lines, and sharing transportation to and from facilities, could be increasing workers’ risk for exposure to the virus. Please visit our previous blog for more information about the steps and controls recommended by OSHA and CDC to limit meat and poultry workers’ risk for exposure to the virus.

Following the announcement of the interim guidance, however, the Department of Labor issued a second statement from Solicitor of Labor Kate O’Scannlain and Loren Sweatt explaining that OSHA will consider good faith attempts to follow the joint guidance in the event of an investigation by the agency and that the agency “does not anticipate citing employers that adhere to the Joint Meat Processing Guidance.“ The statement also explains that “employers should conduct worksite assessments to identify COVID-19 risks and prevention strategies and then implement them. It is important that employers seek to adhere to this Guidance. To the extent employers determine that certain measures are not feasible in the context of specific plants and circumstances, they are encouraged to document why that is the case.”

Employers in the meat and poultry production industries should continue to adhere as best as possible to the joint OSHA/CDC joint guidance. However, if unable to and the specific reasons are well documented, OSHA may be more forgiving in the event of an investigation.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.