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COVID-19: Colorado v. Weld County War Over Virus Rules Escalates

The JBS plant at 800 North 8th Avenue in Greeley.
The JBS plant at 800 North 8th Avenue in Greeley.
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On April 24, Governor Jared Polis issued a warning to Weld County over indications that the jurisdiction was about to go rogue over rules related to the transition from stay at home to safer at home amid the fight against COVID-19.

Since then, Polis's administration has ratcheted up its public-relations battle against Weld. State authorities are conducting testing in the northern Colorado area, anchored by Greeley, with the assistance of the National Guard — and their announcement goes out of its way to suggest that the county is a major hot spot for cases of the novel coronavirus. In addition, the governor's office reached out to the owner of a Greeley barber shop shortly after he told CNN about his plans to open for business days earlier than allowed under the safer-at-home orders, and offered a novel — and incorrect — interpretation of local rules.

The owner says that a governor's rep told him not to open today, April 27, but he's pledged to do so anyway.

Meanwhile, the UFCW Local 7 union has gone public about receiving a cease-and-desist order from JBS, a massive meat plant in Greeley that was temporarily closed because of a COVID-19 outbreak but has since reopened. The union, which represents around 3,000 JBS employees, says that five workers at the plant have died.

Among the main topics of Polis's April 24 press conference was possible defiance of the state's virus rules in the wake of comments made by Weld County Commissioner Mike Freeman. During a local radio appearance, Freeman had chastised Polis for allegedly picking "winners and losers" when it comes to those enterprises allowed to reopen after the stay-at-home orders end; most retail outlets in Colorado will be able to serve customers on site as of May 4, but bars and clubs must remain closed for now, and restaurants can't yet offer in-person service. "What we're saying is, we're going to treat everybody equally and fairly in Weld County," Freeman reportedly said.

Among Polis's responses: "If you're unilaterally saying, 'We're simply not going to follow any public-health guidance,' that is endangering lives, and as governor, I'm going to act to prevent that" using methods that include financial pressure and actions by law enforcement.

The "Safer at Home" executive order includes a mechanism for counties to establish rules specific to their needs: "Any county wishing to apply for a local variance from part or all of this Executive Order must submit a written application to CDPHE [the Colorado Department of Public Health and Environment] certifying that the county has low case counts of COVID-19 cases or can document fourteen consecutive days of decline in COVID-19 cases reported in the county. The application must include a written COVID-19 suppression plan approved by the appropriate local public health authority, all hospitals within the county (unless no hospitals are located in the county), and a majority of the county commissioners.... CDPHE shall review and approve a county-specific COVID-19 suppression plan that meets CDPHE’s public health standards."

The order adds: "CDPHE shall not provide COVID-19 preparedness grant funding to any county that implements measures that are less restrictive than the standards contained in this Executive Order if the county did not first obtain approval from CDPHE to adopt such less restrictive standards."

Weld County has not yet applied for any waiver of this sort, presumably because it's fallen short of the required fourteen-day-case-decline standard set by the state. But Freeman's remarks, and others like it, apparently empowered Jose Oregel to feel he could reopen The Bar.Ber.Shop, at 1544 10th Avenue in Greeley.

Even though Polis's orders don't allow a non-essential business to offer anything other than curbside service — a challenge for a barber shop — before May 4,  Oregel shared this plan with CNN:

On April 24, the state also started conducting targeted testing in Weld County, which will run through April 28. Coordinated by the State Emergency Operations Center and the Colorado Department of Public Health and Environment, it's being staffed by members of the Colorado National Guard and the Colorado State Patrol. Testing is free and available to any Weld County resident with COVID-19 symptoms, including fever, coughing and shortness of breath.

Why did Colorado choose Weld County for this effort? Here's the explanation that the state offered April 25: "With more than 1,200 cases and 69 deaths in a population of just over 324,000, Weld County currently has the highest case rate of COVID-19 among Colorado counties with a population greater than 100,000. The JBS Swift plant, the largest employer in Weld County, is also experiencing a large-scale outbreak of COVID-19."

That outbreak, and the union's response to it, inspired a cease-and-desist letter to UFCW Local 7 president Kim Cordova accusing the UFCW of violating its collective-bargaining agreement. In the letter, Matthew J. Lovell, head of labor relations, health and safety for JBS USA, the plant's parent company, writes:

"Despite the importance of working together in this difficult time," one passage reads, "it has come to the Company’s attention that the Local continues to engage in various activities designed to obtain — by means other than the grievance and arbitration process — outcomes governed by the CBA. In addition to the Local’s outright encouragement of unlawful self-help, we are aware of additional statements to the media and directly to employees subverting and otherwise violating express provisions of the CBA. In particular, it seems the Local has adopted a strategy of generating negative media attention and public opinion in an effort to unwind agreements made in the CBA and gain concessions from the Company as they relate to employee safety. These efforts, and the Local’s direct encouragement that employees withhold production clearly violate the no-strike commitments set forth in the CBA, among other provisions. I write to demand that you and all other agents of the Local cease and desist this conduct immediately."

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The union's response underscores the human toll of COVID-19 at the Greeley facility to date: "As of April 10th, five JBS employees have died from COVID-19, including four UFCW Local 7 members — Way Ler, who passed away [on April 26], and Saul Longoria Sanchez, Eduardo Conchas de la Cruz, and Tibursio Rivera López, who were not provided masks or safety guidelines such as social distancing. According to Weld County, over 120 JBS employees have been confirmed COVID-19 positive, 74 of whom are UFCW Local 7 members."

In her own statement, Cordova fires back at JBS: "UFCW Local 7, our members, JBS and federal, state and local government have one common goal: to ensure that the JBS plant in Greeley is a safe place to work so it can resume business. However, UFCW Local 7 does not agree that the plant is safe at this time because all workers have not been tested for COVID-19, despite promises from Vice President Mike Pence stating he would ensure tests flow to the plant, as well as from Governor Jared Polis and JBS. By reneging on this promise and opening the JBS plant up last week despite not testing every worker, Weld County will continue to be a COVID-19 hot spot in Colorado since many workers could be presently infected and asymptomatic, spreading coronavirus in the plant and the community."

According to Cordova, "The law is clear: the Union’s activities around safety, health and well-being of our members during an unprecedented global pandemic is part of our job and our Constitution, and any litigation seeking to silence the Union from its lawful and Constitutional efforts does not have legal standing."

Expect more disagreements over what is and isn't legal in Weld County during the days and weeks ahead.

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