On April 28, 2020, President Trump invoked powers under the Defense Production Act of 1950 (50 U.S.C. 4501 et seq.), finding that COVID-19 has significantly disrupted the food supply chain with regard to the meat and poultry industry. President Trump specifically determined that the beef, pork and poultry industries manufacture critical materials and need to remain operational during the COVID-19 emergency. In an executive order, the president vested authority with Agriculture Secretary Sonny Perdue to take any appropriate action under his authority to ensure that the meat and poultry industries remain operational.

The Defense Production Act of 1950 gives the president considerable power to require businesses to prioritize performance under contracts necessary for the national defense, such as fulfilling contracts for the production and supply of meat and poultry products. This law was designed to ensure businesses deemed critical for national defense remain operational and produce the most critical products. With the closure of several large meat-processing facilities, the nation’s grocers, restaurants and distributors have become increasingly concerned about the industry’s ability to maintain an adequate supply of products.

Secretary Perdue is required to promulgate guidance on how the U.S. Department of Agriculture (USDA) plans to enforce this executive order. McGuireWoods will continue to monitor the situation. So far, the USDA has stated the following.

1. Meat and poultry processing facilities should follow the Interim Guidance from the Centers for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA) for critical infrastructure workers:
   1. Take workers’ temperatures and assess their symptoms before they enter the facility.
   2. Monitor and require self-monitoring of employee symptoms.
   3. Ensure employees wear face masks, or supply face coverings in the event of shortage.
   4. Ensure employees maintain six feet of social distancing if the work permits.
   5. Clean all surfaces and work spaces.
   6. Immediately send home any employees showing signs of infection.
2. Establishments should continue to follow and maintain Sanitation Standard Operating Procedures, which USDA has identified as effective in reducing the risk of contamination and adulteration of product.
3. USDA is not predicting any issues with Food Safety Inspection Service inspections and is prepared to operate nimbly if necessary.

Questions remain as to how USDA will select specific companies to remain operational and how industry will respond if there is a shortage of workers to maintain normal plant operations.

Even more important is whether regulations stemming from the executive order will extend protections to the meat and poultry industry from downstream liability resulting from operation during COVID-19, from either a products liability or employment standpoint. The industry should continue to implement safety procedures for the workforce and monitor any lapses of USDA inspectors in facilities that are required to remain open.

Because discretion is vested with Secretary Purdue, McGuireWoods will continue to monitor any guidance promulgated by USDA that may clarify industry’s options to remain open or closed.

Additional Resources:

CDC: Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19

CISA: Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response