Following a second COVID-19 outbreak at one of the country’s largest chicken processing plants, a California judge recently issued what is likely the first injunction in the nation against a meat processing plant over coronavirus safety. The ruling leaves in place the substance of a December 2020 temporary restraining order requiring the employer to take 20 specific steps to protect workers from the spread of the virus. The lawsuit was brought by the union that represents the employees at the plant. What can employers learn from this recent ruling?

The Plant And The Pandemic

Foster Farms, the nation’s 10th largest poultry producer, operates a plant in Livingston, California, about 100 miles east of San Jose. It employs over 2,500 workers there, making it the largest employer in Merced County. In the early days of the pandemic, California designated food and agricultural workers, including those in the poultry industry, as essential workers. But limiting the spread of the coronavirus has proved difficult in poultry plants, where many production lines, workstations, and worker transportation methods hinder social distancing efforts.

The first outbreak at the Livingston plant peaked in August 2020. In total, nearly 400 workers tested positive and nine died. Merced County’s public health director called the incident “one of the largest occupational fatalities experienced during COVID-19 in the state of California.” The county health department shut down the plant for six days, during which Foster Farms completed two rounds of deep cleaning of its facilities and COVID-19 testing of its workforce.

In the aftermath of the first outbreak, United Farm Workers of America, the union that represents about 2,000 employees at the plant, alleged that Foster Farms had not been following county public health orders and other directives related to limiting the spread of COVID-19. The union threatened to organize a boycott of Foster Farms’ products if it continued, in the union’s words, “failing to provide a safe workplace.” Then, in December 2020, a second outbreak of COVID-19 began at the plant, as nearly 50 workers tested positive within a short time. The union changed strategies and proceeded to litigation.

The Union Lawsuit

A group of plaintiffs led by the union filed a complaint in state court seeking an injunction to force Foster Farms to institute and enforce rules protecting its workers at the Livingston plant. The lawsuit alleged that the company was operating in “naked disregard of both national and local guidelines” by, among other things, requiring employees to work closer than six feet apart, refusing to supply facemasks to employees, and failing to “keep its workforce adequately informed of safety and sick leave protocol, including access to COVID leave pay.”

The union’s complaint contained some fairly creative claims. First, it pleaded a claim for public nuisance, arguing that Foster Farms’ actions and omissions would cause a community spread of COVID-19. Under California law, a nuisance is something that injures a person’s property or lessens their “personal enjoyment,” and a public nuisance is one that affects a “considerable number of persons” at the same time. Second, it asserted a claim of unfair and unlawful business practices, alleging that Foster Farms “gained an unfair competitive advantage over its competitors that adequately protect the health and safety of their workers and the public.”  

Soon after the suit was filed, the court issued a temporary restraining order (TRO) at the plaintiffs’ request. It ruled against the union as to the public nuisance claim because Foster Farms showed that the COVID-19 infection rate for employees at the plant was significantly lower than the infection rate for the population of Merced County. But the court found that the union was likely to succeed on the merits of its unfair and unlawful business practices claim, commenting that the plaintiffs “have set forth sufficient evidence for the court to be concerned that perhaps Foster Farms is not complying, or is unable to comply, or unwilling to comply or turning a blind eye.”

A TRO typically lasts no more than 30 days. It is meant to prevent immediate and “irreparable” harm that will occur in the time it takes a court to hear evidence and consider whether to issue a longer-term injunction. The court here did so at a preliminary injunction hearing on January 29, 2021 and decided to issue an injunction incorporating the TRO’s 20 requirements imposed on Foster Farms. Those requirements include:

• Requiring all workers to wear face coverings and supplying them with masks;
• Promoting social distancing by staggering employees’ works schedules and break times, and installing additional break areas;
• Installing physical dividers in areas where social distancing is difficult to maintain, like production lines;
• Training employees on COVID-19 hazard mitigation and informing them of testing requirements, outbreaks that occur, areas affected, and training on safety requirements; and
• Warning and appropriately disciplining employees who do not comply with its new COVID-19 policies.

Foster Farms plans to appeal the ruling, characterizing it as unnecessary court intervention, as both the county public health department and Cal/OSHA already have oversight of the plant. Company officials also highlighted the fact that Foster Farms has administered nearly 100,000 COVID-19 tests to its workforce since the pandemic began, 40,000 of them at the Livingston plant.

Conclusion

COVID-19 has had a more severe impact on the meatpacking industry than most others. The combination of an essential workforce, few jobs that can be performed remotely, and the close quarters many of the workers keep presents unique challenges that many employers have found tricky to balance. But subsequent developments in this case show that access to the vaccine will make getting back to work easier for employers — and safer for employees.

Working with local health officials, Foster Farms recently began administering 1,000 doses of the Moderna vaccine for COVID-19 to employees at its nearby poultry plant in Fresno. That plant has seen its own issues with the disease, including a December 2020 outbreak that spread to nearly 200 employees and resulted in two deaths. The company plans to use the Fresno vaccination effort as a model for its other locations, including the Livingston plant, as more doses of the vaccine are administered. Until the vaccine becomes much more widely available, however, employers will have to remain vigilant in their enforcement of policies to limit the spread of COVID-19 in the workplace.