Judge Orders Foster Farms to Comply With COVID-19 Safety Rules

A Merced County judge is ordering Foster Farms to follow local, state and federal COVID-19 safety rules, finding Wednesday that Livingston plant workers and their union are likely to succeed on claims that the company engaged in unlawful business practices by failing to consistently comply with a county health order.

The Livingston plant recently saw its second COVID-19 outbreak, with at least 48 employees testing positive as of early December. The plant was previously shut down for six days in September after 392 workers tested positive and nine died.

United Farm Workers of America and two employees argued in a Dec. 17 request for an emergency restraining order that Foster Farms has been operating in “naked disregard of both national and local guidelines” on COVID-19 safety by requiring people to work within 6 feet of each other, failing to supply masks and keeping workers in the dark about positive cases at the plant, safety rules and sick pay.

At a hearing Wednesday, Superior Court Judge Donald Proietti said 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."

Proietti ruled against the union and workers’ allegation that Foster Farms created a public nuisance by increasing the coronavirus spread in the broader community — acknowledging the company’s argument that the prevalence of COVID-19 at the Livingston plant is lower than that of Merced County’s general population.

But the judge ruled against Foster Farms on another claim, finding that the company may have engaged in unfair business practices by failing to comply with an Aug. 28 health order issued by the Merced County Department of Public Health.

The ruling lists 20 requirements the poultry company must comply with at its Livingston plant, including: providing face masks, staggering employee meal and start times, investigating close contacts of workers who test positive, ensuring infected employees do not come to work and informing all employees of testing requirements and any outbreaks that occur, and safety training in English, Spanish and Punjabi, among other requirements.

The order goes into effect in five days.

Plaintiff's attorneys said the ruling is likely the first court injunction in the U.S. against a meat processing plant over coronavirus safety.

"The court recognized that being an essential worker does not mean that your employer may put your life and health at unnecessary risk," attorney Monique Alonso said in a written statement. The plaintiffs plan to argue for mandatory 6-feet distancing between workers on production lines, which is not required under the court's Wednesday order.

Proietti said that while he believed the last thing Foster Farms wants is for the company’s employees to get sick, he was concerned for the health and safety of workers at the plant.

He said the court’s ruling is “not imposing upon Foster Farms anything in addition to what it’s already agreed to do.”

The judge referenced direction on COVID-19 safety in meat and poultry plants from the Centers for Disease Control and Prevention (CDC), the Department of Labor, Occupational Safety and Health Administration (OSHA), the California Department of Public Health (CDPH), the California Department of Food and Agriculture (CDFA) and California’s Division of Occupational Safety and Health (Cal/OSHA).

Foster Farms’ attorney argued the Merced County Department of Public Health and state and federal agencies are the primary authority on workplace safety issues.

“The reality is, your honor, they’re asking you to kind of insert yourself into this process,” said Christian Rowley, Foster Farms’ attorney.

“This is going to open a huge can of worms for the court in terms of determining what is going to happen with regard to operation of the plant. Is there a violation? Is there not a violation? But you can see where the lack of technical expertise in this area with respect to the court is becoming even more problematic,” Rowley said.

Judge Proietti wrote in his ruling that guidance from regulatory agencies does not preclude a court from enforcing those rules.

At the hearing, Proietti said Foster Farms would have to actively monitor employees and supervisors to ensure they are following the guidelines in the court’s order.

“That means you have to resupply the masks, that means you have to discipline workers who refuse to follow the guidelines,” the judge said. “That’s something the employer has to take into consideration to make sure that their environment remains safe for the workplace and the public.”

In a statement, Foster Farms said the company “does not comment on active litigation in detail but believes that further adjudication will demonstrate that the company is already in compliance with required protective measures for its workforce and that the United Farm Workers lawsuit is without merit.”

The statement also said Foster Farms is working with state and county health authorities to ensure that its workforce receives priority for the COVID-19 vaccine.