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Sky Chadde is the Gannet Agriculture Data Fellow at the Midwest Center for Investigative Reporting. Reach him at sky.chadde@investigatemidwest.orgThis story is embargoed for republication until May 15.

A week after President Donald Trump attempted to prop up the nation's meat supply chain through an executive order, the industry remains hobbled by plant closures and production losses, USA TODAY and the Midwest Center for Investigative Reporting found.

At least seven coronavirus-affected meatpacking plants shut their doors since the April 28th executive order. That’s in line with the average of eight weekly plant closures in the month leading up to the order. 

The meat slaughtering and processing industry is among the hardest hit by the pandemic. At least 167 plants have had outbreaks, sickening at least 9,400 people, primarily workers. At least 45 workers have died, according to the media outlets’ tracking.

In all, at least 38 meatpacking plants have ceased operations at some point since the start of the coronavirus pandemic. All closed for at least a day. Some have stayed closed for weeks. At least two of the seven plants that closed since the executive order have reopened. 

Workers stand close together on a poultry processing line as shown in this photo from a U.S. Government Accountability Office report.

More such closures are anticipated. Tyson Foods, one of the largest U.S. meatpacking companies, announced Monday it expected to shut additional plants because of low staffing and “choices we make to ensure operational safety,” according to its quarterly earning report.

Tyson also owns four of the seven plants that closed in the week since Trump signed the executive order. They’re located in Nebraska, Kentucky and Maine.

The company said the closures were intended to keep workers safe. 

“As we’ve shown in recent days, we will not hesitate to idle any plant for deep cleaning and team member testing,” Tyson spokesman Gary Mickelson said in an email. “Simply put, we will not ask anyone to work in our plants unless we are confident that it is safe.”

The White House declined to comment on the continued closings. 

Production figures released daily by the U.S. Department of Agriculture show that the number of cattle, hogs, and sheep slaughtered nationwide on Tuesday was up 8% compared to the same day last week. However, production is still down more than 35% compared to the same time last year, leading to an increase in “spot shortages” of meat in the nation’s grocery stores and even restaurants chains.

At least one restaurant chain, Wendy’s, has already altered its menu because of it, and Costco limited meat purchases to three items per customer

Producers have seen little difference in their situation since the executive order was signed, said Colin Woodall, the CEO of the National Cattlemen’s Beef Association. They’re still having a hard time getting their animals processed, he said.

“We have not seen an appreciable change,” he said.

Legal experts are split on just how much power the Trump administration wields to keep meatpacking facilities open. The executive order named such plants “critical infrastructure,” but did not include a specific order for them to remain open.

Instead, it delegated authority under the Defense Production Act —  A Korean War-era power that has traditionally been used to move the federal government to the front of the line for supplies — to USDA Secretary Sonny Perdue, who has yet to use it. 

Smithfield Foods, a major meatpacking company, released a statement saying it thought the order allowed it to access more protective gear for its employees. 

That has been the case for Tyson, its spokesman said.

“The executive order has already given us access to additional face coverings for our team members,” Mickelson said. “It also provides better clarity, uniformity and consistency of standards for protecting workers.”

The USDA did not respond to a request for comment on the executive order. But Perdue told Bloomberg News last week that he expected plants to reopen in “days, not weeks.”

At least two plants that closed since the executive order have reopened. Other longer-closed plants also are reopening. Tyson announced a plant in Indiana that closed on April 21 would resume operations on Tuesday and one in Washington that closed on April 23 would reopen this week. 

The USDA said companies would have to submit plans to keep operating during the pandemic. Mickelson said Tyson was developing that plan, which includes partnering with the clinical services company Matrix Medical Network so workers have access to health care at reopened plants.

At the Nebraska plant that Tyson closed this past week, nearly 700 employees tested positive for the coronavirus, according to the Sioux City Journal. The plant is located in Dakota County, which has the state’s third-highest case count, according to state data. 

Cargill shuttered its plant in Schuyler, Nebraska, on Monday and expects it to reopen by May 18, according to a company statement. It’s unknown whether any workers have tested positive, but the plant is in Colfax County, one of the hardest-hit with coronavirus in the state, according to state data.

Cargill declined to answer questions about whether its workers there contracted COVID-19 or if the executive order had any bearing on its decision to close its plant.

Closing the plant “was a difficult decision for our team who are operating an essential service and are committed to delivering food for local families and access to markets for farmers and ranchers,” Jon Nash, Cargill’s North American Lead, said in a statement. 

Cargill said its workers would be paid 36 hours a week as part of its union agreement while the plant remained closed. 

Specialty Foods Group, which closed a plant in Kentucky over the weekend, did not comment. Miller Poultry, which closed a plant in Indiana, did not return a request for comment. 

‘Shot across the bow’

While Trump’s executive order has grabbed most of the headlines, recent guidance by the U.S. Department of Labor has caught the attention of lawyers.

The agency said in a statement last week that new workplace guidelines for meat processing companies take priority over any state or local order to close.

“I think this is a shot across the bow” to states, said Thomas McGarity, a law professor at the University of Texas. “What it’s saying is, ‘If you order one of these outfits to close, we’re going to invoke the Defense Production Act to keep it open.’”

Others are skeptical the federal government holds that power. Deborah Pearlstein, a professor at Yeshiva University’s Cardozo Law School, said the Defense Production Act cannot by itself be used to compel a plant to remain open or undercut state labor regulations.

“American federalism significantly limits how much the federal government can do here to compel states to take actions they don’t want to take,” Pearlstein said. 

Also at stake is worker safety. Trump’s executive order explicitly says the USDA must ensure meat packing plants follow the recently released workplace guidelines. But the guidelines themselves say plants only have to make “good faith” efforts to keep workers safe.

"Modify the alignment of workstations, including along processing lines, if feasible, so that workers are at least six feet apart in all directions... when possible,” the guidelines stipulate.

McGarity says that may be enough to give companies some cover if sued by employees who fall ill with coronavirus. But Nina Mendelson, law professor at University of Michigan, says it doesn’t cover everything.

“A company's compliance with the guidance alone would not insulate it from state law liability, but it would allow the company to argue, in defense to a tort claim, that it had acted with reasonable care to protect its workers,” Mendelson said.  

James Brudney, a professor at Fordham Law School and former chief counsel of the U.S. Senate Subcommittee on Labor, believes the Department of Labor should clear up the confusion by creating formal emergency standards for workers to ensure their safety is protected.

“Not just tips, but requirements,” Brudney said. “On masks, on social distancing, on wage protection and sick leave… on having hand sanitizer available everywhere.”

This story is a collaboration between USA TODAY and the Midwest Center for Investigative Reporting. The Center is an independent, nonprofit newsroom based in Illinois offering investigative and enterprise coverage of agribusiness, Big Ag and related issues. Gannett is funding a fellowship at the center for expanded coverage of agribusiness and its impact on communities.