Wednesday, April 29, 2020

The Executive Order on Meat Processing Doesn't Compel Companies With Sick Workers to Stay Open

By Elizabeth Nolan Brown - April 29, 2020 at 09:30AM

No forced slaughterhouse openings. Early reports about President Donald Trump and meat processing plants seem to have overstated the scope of the president's latest executive order. Despite what was reported yesterday, the order doesn't compel chicken, beef, and pork processing plants to stay open despite having a sick workforce. It does say that open plants must prioritize federal contracts and orders, and is being interpreted by bureaucrats to mean that state authorities can't order these businesses closed.

News that Trump would force meat production companies to stay open despite COVID-19 outbreaks could be found all over the place yesterday. "Trump Orders Meat Plants to Stay Open in Move Slammed by Union," declared Bloomberg News, on a piece that says the order "compels slaughterhouses to remain open." "Trump orders meat and poultry processing plants to stay open during coronavirus," echoed USA Today. "Trump to order meat-processing plants to continue operating amid pandemic," reported The Guardian.

"Trump invoked the Defense Production Act to classify meat plants as essential infrastructure that must remain open … according to a person familiar with the action who spoke about the order before it was signed by the president," said The Washington Post. "The person was not authorized to disclose details of the order."

Well, details of the order are now public. And nowhere does it seem to declare that meat processors wishing to close must remain open or that those which have already closed must open back up.

The order classifies meat processing plants as critical infrastructure, meaning Trump can invoke the Defense Production Act (DPA) in matters related to their output and operation. The part of the DPA that Trump does invoke relates to contracts and orders, specifying:

The President is hereby authorized (1) to require that performance under contracts or orders (other than contracts of employment) which he deems necessary or appropriate to promote the national defense shall take priority over performance under any other contract or order, and, for the purpose of assuring such priority, to require acceptance and performance of such contracts or orders in preference to other contracts or orders by any person he finds to be capable of their performance, and (2) to allocate materials, services, and facilities in such manner, upon such conditions, and to such extent as he shall deem necessary or appropriate to promote the national defense.

[…] The powers granted in this section shall not be used to control the general distribution of any material in the civilian market unless the President finds (1) that such material is a scarce and critical material essential to the national defense, and (2) that the requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship.

Under Trump's new executive order, "the Secretary of Agriculture shall take all appropriate action under that section to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by" the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA).

So what does all that mean? Probably not as much as was feared.

"Nothing in the text of the Order claims any power to force plants to 'stay open,' and nothing in the statutory sections on which the Order purports to rely delegates such authority," University of Texas law professor Steve Vladeck noted on Twitter yesterday.

The main part of the DPA that Trump invokes "is just about allocation of federal resources and priority for federal contracts," Vladeck points out.

There's something of a troubling "to be sure" here:

Still, this looks like another instance of hype about a Trump action not matching the reality of that action.

"Once again, we're buying into how the White House is *describing* the President's actions rather than carefully parsing the actions *themselves,*" tweets Vladeck. "Putting aside the sensational and alarming headlines, this EO actually seems fairly uncontroversial."

As far as the president enforcing compliance (whatever that would look like), that can happen only if federal courts sign off on it.

"OSHA has issued enforcement guidance indicating the agency will use enforcement discretion for employers adhering to appropriate guidance," said U.S. Solicitor of Labor Kate S. O'Scannlain and OSHA Principal Deputy Assistant Secretary Loren Sweatt in a Tuesday evening statement. "OSHA does not anticipate citing employers that adhere to the Joint Meat Processing Guidance."

Here's the CDC/OSHA guidance on safe operation of meat processing plants that they and the Trump order refer to. It states near the top:

Meat and poultry processing facilities are a component of the critical infrastructure within the Food and Agriculture Sector. CDC's Critical Infrastructure Guidance advises that critical infrastructure workers may be permitted to continue work following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented to protect them and the community.

The CDC/OSHA guidance continues:

All meat and poultry processing facilities developing plans for continuing operations in the setting of COVID-19 occurring among workers or in the surrounding community should (1) work directly with appropriate state and local public health officials and occupational safety and health professionals; (2) incorporate relevant aspects of CDC guidance, including but not limited to this document and the CDC's Critical Infrastructure Guidance; and (3) incorporate guidance from other authoritative sources or regulatory bodies as needed.

In their Tuesday statement, O'Scannlain and Sweatt say "it is vitally important that employers in this critical industry adhere to the Joint Meat Processing Guidance to protect their workers from the risk of COVID-19 infection."

"Additionally, because of the President's invocation of the DPA, no part of the Joint Meat Processing Guidance should be construed to indicate that state and local authorities may direct a meat and poultry processing facility to close, to remain closed, or to operate in accordance with procedures other than those provided for in this Guidance," they add.

So, the president can't force particular meat processing plants open under this order. But states can't force any meat processing plants closed, eitheror at least that's how Labor Department reps have interpreted it for now.

The big deal in the executive order and interpretations of it may be about meat processing plant liability for employee exposure. From O'Scannlain and Sweatt's statement:

Courts often consider compliance with OSHA standards and guidance as evidence in an employer's favor in litigation. Where a meat, pork, or poultry processing employer operating pursuant to the President's invocation of the DPA has demonstrated good faith attempts to comply with the Joint Meat Processing Guidance and is sued for alleged workplace exposures, the Department of Labor will consider a request to participate in that litigation in support of the employer's compliance program. Likewise, the Department of Labor will consider similar requests by workers if their employer has not taken steps in good faith to follow the Joint Meat Processing Guidance.


ELECTION 2020 

Rep. Justin Amash, who represented Michigan in Congress as a libertarian-leaning Republican before switching his designation to independent last year, will be running for president as a Libertarian. "More than three years after first seriously contemplating it, one year after coming out in favor of impeachment proceedings against President Donald Trump, nine months after leaving the Republican Party, two months after hitting pause on his congressional reelection campaign, and just 22 days before the Libertarian Party (L.P.) is scheduled to select its own nominee, Rep. Justin Amash of Michigan, the most libertarian member of Congress, has decided to form an exploratory committee about running for president," writes Reason's Matt Welch. More:

The 40-year-old son of Middle Eastern immigrants (mom is from Syria, dad a Palestinian refugee) now seeks to become the limited-government standard-bearer against septuagenarian big-government competitors Donald Trump and Joe Biden. He would certainly be the most high-profile presidential candidate, and the first to concurrently hold elected office, in the Libertarian Party's half-century of existence.

More from Welch here. See also: other L.P. candidates react to the Amash announcement.


FREE MARKETS

What, let a little thing like a global plague come in the way of the war on vaping? Not the U.S. Food and Drug Administration (FDA)! This week, the agency that helped massively screw up America's early COVID-19 response is threatening companies that sell various vaping products. The FDA told makers of backpacks and sweatshirts with e-cigarette pockets that they must stop selling such products. It also sent warning letters to makers of vaping products that look like watches or video games, vaping packages that feature cartoon characters, and vaping packaging deemed to look too much like candy.


COVID-19 BEHIND BARS

In Ohio, prison-linked coronavirus cases in the outside community are widespread. By now, "more than 80% of Marion Correctional Institution's prison population has tested positive for COVID-19 … along with more than 160 corrections officers and other staff who live in Marion and surrounding counties," reports the Marion Star, according to the Ohio Department of Rehabilitation and Correction. The Marion Public Health department says there are at least 112 cases of COVID-19 in Marion County and about 59 percent are tied to the prison outbreak.

Yesterday, the Bureau of Prisons reported the first COVID-19 death in federal custody:


QUICK HITS

  • "Three Texas lawsuits claiming Facebook is a breeding ground for sex traffickers, brought by women who say as juveniles they were coerced into prostitution by men who contacted them on Facebook and Instagram, survived a motion to dismiss by the social media company," notes Courthouse News.
  • An Alaska school board voted to remove I Know Why the Caged Bird Sings, Catch-22, The Great Gatsby, The Things They Carried, and Invisible Man from a list of books teachers are allowed to include in coursework.
  • YouTube is getting in on the tech-companies-as-arbiters-of-truth game.
  • "The coronavirus pandemic is catapulting demand for telemedicine abortion to a new level," reports The New York Times.
  • Vice President Mike Pence refused to wear a mask while touring the Mayo Clinic.

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