By Y. Peter Kang

Law360 (December 23, 2020, 9:42 PM EST) -- A California state judge on Wednesday issued a temporary restraining order against Foster Farms requiring the poultry processor to comply with COVID-19 safety protocols issued by county health regulators after a previous coronavirus outbreak at a company facility in Central California sickened over 400 workers and caused nine deaths.

The order mandates that Foster Poultry Farms provide and require workers to wear face coverings, implement various social distancing and hygiene measures and other safety protocols, and institute health screenings for all outside visitors, among other requirements. The TRO, which doesn't go into effect until Monday, Dec. 28, is believed to be the first of its kind to be imposed on a meatpacking company in connection with coronavirus safety measures, according to an attorney for the workers who brought the suit.

During oral arguments held via Zoom on Wednesday, counsel for the United Farm Workers of America and two workers at Foster Farms' Livingston processing plant asserted that the company has failed to comply with Centers for Disease Control and Prevention guidelines and Merced County health officials' directive that Foster Farms implement proper safety precautions to protect its workers from the novel coronavirus.

Counsel for Foster Farms argued that a TRO was not necessary because the company was already in compliance and the infection rate of employees had dropped to less than 1%.

At the end of the 90-minute hearing, Merced County Superior Court Judge Donald J. Proietti sided with the workers, saying he was concerned with the health and safety of plant employees amid a statewide shutdown order and skyrocketing COVID-19 cases.

"It's an extraordinary time," said Judge Proietti. "This is not a case involving a good driver discount. This is a case involving the life and safety of citizens, residents, people who work and live in our community."

The judge said the TRO represents the "least restrictive" court order that only requires Foster Farms to comply with health requirements to which it had already agreed.

Judge Proietti turned aside the company's argument that the claims are preempted by the federal Defense Production Act, a law under which President Donald Trump designated, via an April executive order, that meatpacking plants are critical infrastructure amid the COVID-19 pandemic.

"This court is not going to simply abdicate responsibility and say, 'Sorry, it's preempted,'" the judge said. "I don't believe that ordering Foster Farms to do what it agreed to do preempts this court from making that a part of the TRO."

A Foster Farms representative said the company "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."

An attorney for the workers, Monique Alonso, told Law360 on Wednesday that they are satisfied with the ruling.

"We're really pleased that the judge said we had enough evidence that they aren't following county health orders or CDC guidelines," she said. "Somebody has to hold Foster Farms' feet to the fire and [the judge] went ahead and did it. We're hopeful this will do the trick. Many of the workers are longtime employees — they show up and want to do their jobs and they want to be safe, just like all of us."

UFW Vice President Erika Navarrete said in a statement via Twitter that the union "will never stop fighting to prevent more unnecessary deaths and suffering caused by Foster Farms' failure to follow clear rules."

The workers filed suit on Dec. 17 asking the court to order Foster Farms to comply with a Merced County health department's August order mandating the company institute testing protocols and other safety measures at its 2,600-worker Livingston facility, which had a June outbreak that infected 392 workers and led to nine deaths and a six-day plant shutdown in September.

A second outbreak was declared by health officials on Dec. 3 and remains ongoing, according to the workers' complaint.

"In naked disregard of both national and local guidelines, Foster Farms requires employees to work substantially less than six feet apart from each other for prolonged periods of time with no plastic divider or similar protection between them, fails to rigorously or effectively enforce social distancing or even to supply masks," the suit said. "These abject failures to impose and enforce protocols recognized the world over precipitated the latest outbreak just three months after the County shut the Plant down."

The plaintiffs are represented by Monique Alonso, Laurie M. Burgess and Gary M. Messing of Messing Adam & Jasmine LLP and Mario Martinez and Edgar I. Aguilasocho of Martinez Aguilasocho & Lynch APLC.

Foster Farms is represented by Christian J. Rowley, Alfred L. Sanderson Jr. and Jennifer L. Mora of Seyfarth Shaw LLP.

The case is United Farm Workers of America et al. v. Foster Poultry Farms, case number 20CV-03605, in the Superior Court of the State of California, County of Merced.

--Editing by Michael Watanabe.

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