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Critical Infrastructure Worker Guidance Identifies Food & Agriculture Workers Broadly

The federal government has taken a supporting role as state and local governments and private companies institute an evolving patchwork of responses to the COVID-19 pandemic.  On March 19, 2020, the Cybersecurity and Infrastructure Security Agency (CISA), operating under the Homeland Security Act of 2002, issued guidance and an accompanying list of “Essential Critical Infrastructure Workers.”  CISA’s list is intended to promote the ability of essential workers to continue to work during periods of community restriction, access management, social distancing, and closure orders or directives.

CISA identifies Food & Agriculture as a critical industry and describes essential workers in this industry as follows:

  • Workers supporting groceries, pharmacies and other retail that sells food and beverage products
  • Restaurant carry-out and quick serve food operations – Carry-out and delivery food employees
  • Food manufacturer employees and their supplier employees—to include those employed in food processing (packers, meat processing, cheese plants, milk plants, produce, etc.) facilities; livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities producing by-products for animal food; beverage production facilities; and the production of food packaging
  • Farm workers to include those employed in animal food, feed, and ingredient production, packaging, and distribution; manufacturing, packaging, and distribution of veterinary drugs; truck delivery and transport; farm and fishery labor needed to produce our food supply domestically
  • Farm workers and support service workers to include those who field crops; commodity inspection; fuel ethanol facilities; storage facilities; and other agricultural inputs
  • Employees and firms supporting food, feed, and beverage distribution, including warehouse workers, vendor-managed inventory controllers and blockchain managers
  • Workers supporting the sanitation of all food manufacturing processes and operations from wholesale to retail
  • Company cafeterias – in-plant cafeterias used to feed employees
  • Workers in food testing labs in private industries and in institutions of higher education
  • Workers essential for assistance programs and government payments

Employees of companies engaged in the production of chemicals, medicines, vaccines, and other substances used by the food and agriculture industry, including pesticides, herbicides, fertilizers, minerals, enrichments, and other agricultural production aids

Animal agriculture workers to include those employed in veterinary health; manufacturing and distribution of animal medical materials, animal vaccines, animal drugs, feed ingredients, feed, and bedding, etc.; transportation of live animals, animal medical materials; transportation of deceased animals for disposal; raising of animals for food; animal production operations; slaughter and packing plants and associated regulatory and government workforce

Workers who support the manufacture and distribution of forest products, including, but not limited to timber, paper, and other wood products

Employees engaged in the manufacture and maintenance of equipment and other infrastructure necessary to agricultural production and distribution

The CISA list above identifies food packaging and other examples of products that people may not generally recognize as being regulated by FDA as “food,” such as pet food and animal feed, but it does not explicitly recognize dietary supplements as food.  An industry report indicates that dietary supplement manufactures have urged that plants and their sales channels remain open during the COVID-19 pandemic.  The CISA guidance ultimately leaves the issue for state and local governments to decide, although it suggests a broad interpretation, noting “these identified sectors and workers are not intended to be the authoritative or exhaustive list of critical infrastructure sectors and functions that should continue during the COVID-19 response.”

While agriculture workers are explicitly identified on CISA’s list of critical infrastructure workers, it is not clear how other arms of the federal government will support CISA’s efforts.  For example, the Wall Street Journal and others have reported that the State Department has stopped processing visas in Mexico for seasonal workers to enter the U.S.

© 2020 Keller and Heckman LLP

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Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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