OSHA blamed for going AWOL during COVID-19

Bryce Covert / FairWarning


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This story was produced by FairWarning (www.fairwarning.org), a nonprofit news organization based in Southern California that focuses on public health, consumer, labor and environmental issues. You can sign up for their newsletter here.

When workers at the Maid-Rite Specialty Foods meatpacking plant feared that a lack of safety precautions against COVID-19 put them in imminent danger, they turned to the Occupational Safety and Health Administration for help, filing two separate complaints. “I’m scared to go to work every day I’m risking my life,” a worker wrote in one of them.

But when their complaints led to just a phone call and email exchange between OSHA and the company in Dunmore, Pennsylvania — and no inspection — they filed a lawsuit against the agency. Only then did OSHA agree to send out an inspector. Breaking with normal procedure, which is to not give advance notice, the inspector called the company the day before to say she was coming.

Workers later said in sworn declarations that the company made changes ahead of the inspection, putting workers further apart and having them pull their face shields down, but went back to its earlier practices once the inspector had left.

It was typical of what critics see as OSHA’s lackadaisical and business-friendly approach to the virus that has ravaged many workplaces.

Across the country, at least 491 meatpacking plants have had confirmed cases of COVID-19, with at least 41,167 meatpacking workers testing positive, according to the Food & Environment Reporting Network, a nonprofit news organization. At least 193 have died.

Since the pandemic began, OSHA, whose mission is “to ensure safe and healthful working conditions for working men and women,” reports that it has received over 10,000 complaints from workers concerned about a lack of protections against the coronavirus.

But until early September, six months into the crisis, the agency had issued citations to just two employers, requiring them to adopt safer practices, according to available OSHA records. Since the start of the month, OSHA has cited more than two dozen other employers for COVID-19-related violations, nearly all of them hospitals or long-term care homes. As of Sept. 4, it had conducted 199 inspections in response to complaints and closed more than 8,500 of them without taking further action.

The agency also has failed to put in place an emergency standard that former OSHA officials and labor advocates say would require workplaces to address the dangers of COVID-19. Instead, it has merely issued guidelines and asked employers to follow guidance from the Centers for Disease Control and Prevention — making clear that these are recommendations, not requirements.

Benefit of the doubt

Early on, the Trump administration signaled its intent to give the benefit of the doubt to employers. In mid-April, the Labor Department issued a statement saying OSHA would take employers’ “good faith” efforts to protect workers into consideration in deciding whether to issue citations.

An OSHA spokesperson told FairWarning that the agency “is committed to protecting America’s workers during the pandemic, and has been working around the clock to that end.”

The pandemic came at a time when chronic staff shortages at OSHA had grown even worse under the Trump administration, which, as part of its campaign to ease regulation of business, has reduced the number of inspectors and left top executive posts unfilled.

Some states that run their own job-safety agencies have stepped in to fill the void, but not everywhere. In California, for instance, Cal/OSHA, already hobbled by years of cuts, did not issue any citations for failure to protect workers from COVID-19 until early September, after outbreaks that had killed or sickened dozens of workers.

In the lawsuit by Maid-Rite workers against OSHA, the workers said the plant gave them incentives to come in sick and refused to report when someone tested positive, failed to provide enough masks and set up the production line so that they often work “shoulder to shoulder,” touching elbows. As many as half of the plant’s employees, they said, have contracted COVID-19.

During a court hearing, an agency inspector acknowledged that there were no barriers between workers and that they were only being given masks every two weeks. But because no one had been hospitalized or died, OSHA officials said, the situation at Maid-Rite didn’t pose imminent harm.

Susan Giguere, an OSHA assistant area director, acknowledged that OSHA is treating COVID-19 complaints from “medium-risk” facilities such as meatpacking plants as “non-formal,” meaning they won’t spark on-site investigations and can instead be addressed through email, according to a transcript of the hearing. OSHA officials said at the hearing that it’s unlikely they would find any COVID-19-related complaint to constitute an imminent danger, even those where workers aren’t able to stay socially distant or employers aren’t providing or requiring masks.

“I get complaints all the time that say ‘life-threatening complaint’ at the top, and the complaint item will be somebody forgot to put toilet paper in the middle stall of the bathroom,” Giguere said. She said she hadn’t yet seen a COVID-19 complaint that constituted an imminent danger.

Big contradiction

David Michaels, assistant secretary of labor in charge of OSHA from 2009 to 2017, testifies before Congress
David Michaels, assistant secretary of labor in charge of OSHA from 2009 to 2017, testifies before Congress.

As for the announced inspection of Maid-Rite, the inspector said it was for her safety “in a worksite with potential COVID-19 exposure.” If so, noted David Michaels, public health professor at George Washington University who served as assistant secretary of labor in charge of OSHA from 2009 to 2017, “then how can OSHA say it isn’t an imminent danger? It’s a big contradiction.”

A Maid-Rite spokeswoman told FairWarning that it has taken all necessary steps.

“We have followed all CDC, Pennsylvania Department of Health, and OSHA guidelines to protect our employees, and to further ensure their safety, we proactively brought in an independent occupational safety expert to confirm our protocols were…of the highest standards,” she said. OSHA declined to comment on the inspection or the lawsuit.

“We have done exactly what we should have done in response to a serious situation,” OSHA Regional Solicitor Oscar L. Hampton III argued at the court hearing.

OSHA has never been flush with money or personnel. But under the Trump administration, staffing and inspections had both dropped before the pandemic hit.

The number of OSHA inspectors fell to 862 by the end of last year, according to data provided by OSHA to the National Employment Law Project and the AFL-CIO. That’s the lowest number ever recorded, despite the fact that they’re responsible for policing more than 8 million workplaces. Under Trump, the number of inspectors has been below 900 every year he’s been in office, a threshold never before breached, according to the OSHA data.

Even with Congress increasing OSHA’s budget in 2018 and 2019, the money hasn’t been deployed to hire up, according to one congressional staffer. At the beginning of the Trump administration, many of those who were eligible for retirement left. A federal hiring freeze at the start of the administration also kept agency numbers low.

“When senior managers and staff left, they weren’t replaced quickly,” Michaels said.

The agency hasn’t had a confirmed head during the entire Trump administration. If nothing changes through January, Trump’s administration will be the first not to get an OSHA director confirmed for an entire four-year term. Instead, Principal Deputy Assistant Secretary Loren Sweatt is acting head. Of 21 executive positions, nine are currently filled by acting, unconfirmed appointees.

In its first months, the administration didn’t issue a single press release to announce enforcement actions. One Duke University researcher found that press releases have such a ripple effect in other workplaces that a single one yields the same compliance as 210 inspections.

Rolling back

And instead of issuing new rules to protect employees, the administration has been focused on rolling back regulations, including Obama administration rules on workplace exposure to hazardous beryllium dust and requiring companies to post injury and illness data online. The list of pending regulatory actions OSHA was poised to take was cut by more than half at the start of the administration.

The Trump administration halted work on a proposed infectious disease standard that was started under President Obama. After dozens of health care workers got sick during the 2009 H1N1 swine flu outbreak and voluntary guidelines proved to be inadequate, the Obama OSHA initiated the rulemaking. It would have required the health care industry to make preparations for airborne diseases such as COVID-19.

When the pandemic hit, Trump’s OSHA continued to take a less-than- aggressive approach.

The agency released an enforcement plan in mid-April that said it would focus inspections in high-risk workplaces, mostly health care settings.

Pressured by congressional Democrats, in May it released an updated enforcement plan saying it would also prioritize workplaces with a large number of complaints. But even at the end of that month, when a hospital union representative in Florida made a complaint, he received a voicemail from an OSHA representative informing him, “We are not performing any inspections or any type of enforcement regarding coronavirus,” according to the Miami Herald.

AFL-CIO’s Rebecca Reindel says OSHA has a duty to protect workers.
AFL-CIO’s Rebecca Reindel says OSHA has a duty to protect workers.

“It’s not just an authority they have, but a responsibility and a duty,” said Rebecca Reindel, director of occupational safety and health at the AFL-CIO. “This agency has the responsibility to go out and protect people.”

The agency has also refused to issue an emergency temporary standard for COVID-19, which it has authority to do when employees are exposed to a new hazard that presents a “grave danger.” An emergency standard would create temporary rules to keep workers safe. It would be in place for six months, giving the agency time to work on a permanent standard for dealing with infectious diseases. Employers would also be prohibited from retaliating against workers for speaking up about danger.

Instead, the agency so far has only asked employers to follow CDC guidelines, which include maintaining six feet between employees and between customers, providing soap and water or alcohol-based hand sanitizer, performing routine cleaning and encouraging workers to wear masks. OSHA has also asked employers to follow its own similar set of recommendations, while stating that the guidance “is not a standard or regulation, and it creates no new legal obligations.’’

In late April, Secretary of Labor Eugene Scalia defended the lack of an emergency standard by saying at a press briefing, “We have the tools we need, and will use them if necessary.” When Rep. Alma Adams (D-North Carolina), asked Acting Director Sweatt during a May 28 hearing if COVID-19 presents a “grave danger” to workers, a condition that allows for an emergency standard, Sweatt refused to answer. John Howard, director of the National Institute for Occupational Safety and Health, which is part of the CDC, answered the same question, “Yes, I do.”

In response to a question about why it hasn’t issued a temporary standard, a Department of Labor spokesperson told FairWarning, “OSHA has a number of existing standards that impose enforceable obligations on employers to protect workers from COVID-19.” He cited its general duty clause that authorizes it to act in cases involving “recognized hazards that are causing or are likely to cause death or serious physical harm,” which the spokesperson said could include COVID-19.

House Democrats included a measure in their most recent pandemic relief bill instructing OSHA to issue an emergency temporary standard for COVID-19. But the bill has yet to be taken up in the Senate, where Republicans have instead insisted on a liability shield for businesses that also prohibits OSHA from doing most inspections.

On their own

Without a binding standard and on-site enforcement, employers are more or less on their own in figuring out how to protect employees. Even ones that want to do well by employees might not do it right. “There’s nothing like an expert walking through your workplace” who can identify safety hazards and talk through how to fix them, Reindel said.

Adam Finkel, a professor of environmental health at the University of Michigan who was director of health standards for OSHA from 1995 to 2000, said that with only a limited number of high-profile inspections, the agency could send a message that it is serious about protecting workers from the coronavirus.

“They could certainly make an example of companies, not just by issuing token penalties, but issuing large fines and insisting on swift and meaningful improvements,” he said, and by demanding that those with large outbreaks enforce mask-wearing and social-distancing. “It’s 19th-century technology: fans and ventilation and masks,” he said. “They’re not even trying, it’s pretty clear.”

Instead, President Trump issued an executive order in late April “to ensure that meat and poultry processors continue operations” so that the country would have an uninterrupted supply of beef and poultry.

It was not until September that OSHA cited Smithfield Packaged Meats Corp. in Sioux Falls, South Dakota, and JBS Foods Inc. in Greeley, Colorado, two meatpacking companies, for failing to protect employees from COVID-19. Combined, 1,584 employees at the two plants have tested positive for the disease over the last six months and 10 have died.

OSHA has proposed a $13,494 fine for Smithfield and $15,615 for JBS, amounts that critics say are much too low to get them to change. The agency pointed out that $13,494 is the maximum penalty allowed for a single serious violation. But Michaels argued it could have issued multiple citations for violations in different parts of the plants and for different problems “given the outrageously dangerous situation.”

“The tiny fines that OSHA imposed on these enormous global corporations sends the unfortunate message to meat factories that they need not worry about OSHA inspections,” he said.

Nearly half the states have been authorized by OSHA to run their own job-safety programs, and many have gone beyond federal OSHA’s response. In June, Virginia became the first state to issue its own emergency temporary standard for COVID-19 safety. Oregon is working on one as well.

Some of the state agencies have been active. Oregon has cited 18 businesses and issued fines. Nevada issued nine citations in August.

But others have been slower to rise to the moment after years of their agencies being hollowed out. California, with a workforce of nearly 19 million, has just 193 inspectors, with 53 vacancies. That’s fewer workplace inspectors than the 250 fish and game wardens the state employed in 2018, according to figures compiled by Garrett Brown, who worked as a field inspector for Cal/OSHA for 20 years and recently returned as a part-time “retired annuitant” to help reduce the backlog of COVID-19 cases.

“It’s a barely functioning agency at this point,” Brown said before rejoining the agency. Cal/OSHA has a ratio of one inspector to 72,734 employees, according to OSHA data given to the AFL-CIO. By contrast, Oregon has one inspector for every 23,841 workers, while Washington has one for every 27,649.

California received 5,077 COVID-19-related complaints and conducted 538 on-site inspections between February and July, according to an August presentation by Cal/OSHA chief Douglas Parker that was shared with FairWarning. It also did 4,137 investigations via letter. By contrast, Oregon had conducted more than 5,000 on-site spot checks by early August. It took Cal/OSHA six months, until early September, to issue citations. It’s since cited about two-dozen employers, including a proposed fine of $436,155 against frozen-food manufacturer Overhill Farms Inc. in Vernon, California, and its temp staffing agency.

In 2009, California created a standard to protect certain categories of workers, such as nurses and police officers, from diseases spread through the air. The Cal/OSHA standards board voted on Sept. 17 to begin the process of creating emergency standards for COVID-19. But regulations have to be enforced by Cal/OSHA staff, and Brown said that the agency has been neglected by governors of both political parties.

A robust response from federal OSHA would alleviate the burden on individual states. “Leaving it to the states and saying, ‘You’re on your own,’ instead of having a national strategy — that leaves a ton of workers in the dark,” Reindel said.

The Maid-Rite workers count themselves among them.

“After you reach out to your employer and they do nothing, you expect OSHA to do something,” one of the plaintiffs said in a sworn declaration. “When they do nothing, where else do you go?”