The Foster Farms chicken plant in Livingston continued to operate, despite a Merced County Health Department order to shut down, according to a statement released by Foster Farms Friday morning.

The Merced County Health Department ordered the Foster Farms Livingston Facility to shut down on Wednesday after officials said the company repeatedly failed to comply with COVID-19 regulations to keep employees safe. On Thursday, county officials issued a 48-hour stay following a phone call with the U.S. Department of Agriculture’s secretary for food safety.

Merced County spokesperson Mike North said the company had 48 hours as of Thursday at 6 p.m. to shut down.

The decision to delay the shutdown was made by the county health department “in order to facilitate additional resources for COVID testing of plant employees and to ensure humane handling of the flocks at the facility,” according to a statement from a USDA spokesperson to The Fresno Bee.

“Immediate closure of the plant would not provide for a humane path forward for hundreds of thousands of live birds and would result in discarding hundreds of tons of food,” the spokesperson said in an email.

The California Health Department, Food and Agriculture Department, Attorney General’s Office, and the Centers for Disease Control and Prevention also participated in the call, according to USDA, and the call “allowed all the parties to work out a path forward.”

“Immediate closure of the plant would not provide for a humane path forward for hundreds of thousands of live birds and would result in discarding hundreds of tons of food.”

United States Department of Agriculture

A USDA spokesperson said the call, which they put together, was a routine part of President Donald Trump’s executive order, “Delegating Authority Under the Defense Production Act With Respect to Food Supply Chain Resources During the National Emergency Caused by the Outbreak of COVID–19.”

When asked if the county was pressured to keep the plant open, North declined to comment. But the federal government’s involvement raised eyebrows among industry experts.

“This is the federal government coming in and advocating on behalf of big poultry against the interests of the community and the workers,” said Debbie Berkowitz, worker health and safety program director at the National Employment Law Project and former senior policy adviser for the Occupational Safety and Health Administration under Barack Obama.

Berkowitz said Trump’s executive order did not give the federal government authority to keep meatpacking plants open.

“Are they making the decision here based on the life of a chicken instead of a human being? What they want to do is kill the chickens that are piling up, but COVID-19 is spreading through the plant, so how are they going to protect the workers in the next 24 hours?”

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Livingston plant continues to operate

The statement issued by the company Friday did not include any mention of shutting down the facility, even after 48 hours. Instead, they said they would conduct comprehensive testing of the Livingston complex Friday, Aug. 28, “and will conduct additional follow up testing to ensure that COVID-19 prevalence remains minimal.”

“Foster Farms has an extensive history of successfully working with federal, state, and local agencies,” the statement reads. “Foster Farms has provided weekly data to the Merced County Health Department since June 30, and consistently offered to answer any questions related to that data. We have promptly responded to any and all recommendations and directives from the department.”

The U.S. Department of Health and Human Services is facilitating access to resources, which Foster Farms will pay, to test enough people for COVID-19 in order to keep the company running, according to their statement to The Bee.

Erika Navarrete, vice president of United Farm Workers, the union representing Foster Farms employees, said things look like any other day at the plant. Workers have not received any news from their employer about the plant shutting down.

She said it remained unclear whether employees would be paid if the plant closed down.

“Right now, the county and different institutions from the government are talking about that,” she said. “But the order from the county said something, and 10 minutes later, the order changed, so it’s so difficult.”

Veronica Garibay, co-director of Leadership Counsel for Justice and Accountability, said her organization and others were flooded with questions from Foster Farm employees on Thursday night about the county orders.

Multiple workers shared with her organization a message they received from the company telling them to show up to work Friday.

“All active employees should report to work for their next scheduled shift; sites are safely operating. Please wear face covering and follow other safe practices,” the message reads.

“Workers are not being told what’s happening, which is problem number one,” Garibay said.

Foster Farms spokesman Ira Brill could not be reached for comment Thursday afternoon or Friday morning. The company statement was provided by Lorna Bush, senior vice president of public relations firm Fineman PR.

“The county and public health officials are working behind the cloak of darkness here,” Garibay added. “The public doesn’t know what the next steps are. What we do know is there are there are pretty egregious violations here.”

Foster Farms ignored COVID-19 guidance, officials say

According to the health department’s statement Thursday, the company repeatedly failed to comply with county and Cal-OSHA orders. Those included significant changes to employee break spaces and widespread employee testing.

The State Attorney General’s Office, the California Department of Public Health and the county health department, “worked with Foster Farms to limit the impact of the closure and could not reach agreement,” according to the statement.

“The closure of this plant is the only way to get the outbreak at Foster Farms swiftly under control,” Merced County Public Health Office Dr. Salvador Sandoval in the statement released Thursday.

“The public doesn’t know what the next steps are. What we do know is there are there are pretty egregious violations here.”

Veronica Garibay, Leadership Counsel for Justice and Accountability

The California Department of Public Health also issued a statement to support the county’s action.

Foster Farms, on the other hand, said the company has been in full compliance.

The statement says they completed over 2,500 tests, with an asymptomatic COVID-19 positive rate of less than 1%. They confirmed eight deaths among their employees and 349 total positive COVID-19 cases, with 239 of those individuals cleared to return to work.

“The low rate of symptom-free COVID-19 positive workers underscore our confidence in the plant’s safety,” the statement reads.

According to the statement by the Merced County Health Department, at least 358 employees have tested positive, but the real spread remains unknown.

The outbreak at the Livingston Facility accounts for 18% of COVID-19 deaths in the county under age 65, 7% of total county deaths, and four out of 10 coronavirus deaths in Livingston, the health department said.

The company attributes a rise in positive cases at the Livingston complex to a rise in overall Merced County cases after the state lifted COVID-19 restrictions. The company said they implemented CDC guidelines throughout the pandemic but cannot protect workers exposed in the greater community.

Manuela Tobias is a reporter with The Fresno Bee. This article is part of The California Divide, a collaboration among newsrooms examining income inequity and economic survival in California.

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Manuela is a reporter at The Fresno Bee covering income inequality and economic survival for the California Divide. She is a former staff writer for PolitiFact, where she covered politics, health care...