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May 11, 2021

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Pandemic, Trump-era neglect overwhelm federal agency tasked with worker safety

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Health care workers from Research and Menorah medical centers hold a candlelight vigil to commemorate the one-year anniversary of the coronavirus pandemic and to honor those who died from COVID-19, as well as those who survived, on Thursday, March 11, 2021, outside of Research Medical Center. They bowed their heads during a prayer.
Health care workers from Research and Menorah medical centers hold a candlelight vigil to commemorate the one-year anniversary of the coronavirus pandemic and to honor those who died from COVID-19, as well as those who survived, on Thursday, March 11, 2021, outside of Research Medical Center. They bowed their heads during a prayer. (Jill Toyoshiba/The Kansas City Star/TNS) Photo Gallery

They worked shoulder to shoulder with sharp knives. Shifts were extended to 11 hours. They were offered $500 bonuses if they didn’t miss a shift in a month during which a major health crisis loomed.

Those were among the allegations against the Smithfield Foods meat processing plant in Milan, a town of not quite 2,000 in north-central Missouri, as the coronavirus pandemic spread across the country last April. Personal protective equipment wasn’t readily available. Corridors and restrooms remained crowded. Some didn’t wear masks.

When Smithfield was sued over conditions at the plant, the company argued the job of policing workplace safety complaints belonged to the U.S. Occupational Safety and Health Administration, or OSHA, rather than the court system.

The Rural Community Workers Alliance (RCWA), which brought the lawsuit, did not seek damages. It asked instead for a quick injunction to improve safety measures at the plant, arguing that OSHA would have difficulty responding rapidly to an emerging health crisis. A federal judge sided with Smithfield, saying the dispute was an OSHA matter.

OSHA inspectors investigated. The results of their inquiries aren’t publicly known, but no violations have been listed in online OSHA records.

Smithfield’s lawyers said in a filing last year that the RCWA lawsuit “grossly misrepresented” safety measures at Milan. Keira Lombardo, chief administrative officer for Smithfield, told The Kansas City Star in a statement that it took “aggressive and comprehensive actions” that involved “tens of millions” to keep workers safe. The company would not answer specific questions by press time.

In Missouri, Kansas and across the country, OSHA is facing scrutiny for its handling of workplace safety complaints generated by the COVID-19 pandemic. The U.S. Department of Labor’s Office of Inspector General reported last month that OSHA had reduced the number of inspections it carried out at workplaces even as complaints surged. Allegations of poor infection prevention and control have flooded the agency.

Interviews with former OSHA officials, workplace safety experts, attorneys, union leaders and workers paint a portrait of an agency struggling with Trump-era reductions to its inspector ranks, a wave of pandemic-related complaints and shifting public health guidance.

As panicked employees turned to the agency tasked with ensuring that their workplaces are safe, OSHA was unable to meet the demand for inspections and enforcement.

“Very early on near the beginning of the pandemic, we were fairly sure that we would not have OSHA having the backs of workers. We didn’t expect such an egregious lack of response,” said Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health, a worker advocacy group.

The Star reviewed OSHA data and found at least 101 complaints in Kansas and 453 in Missouri related to COVID-19 over the past year. The complaints rarely led to in-person inspections.

OSHA hasn’t reported any COVID-related violations in Kansas. Six violations have been found in Missouri, with fines totaling $52,821.

The workplaces fined include nursing homes, such as Grand Manor Nursing and Rehabilitation Center in St. Louis, and industrial facilities, such as Unilever in Independence. None of the facilities are in Kansas City.

Nationally, the Inspector General’s report found complaints rose 15 percent in 2020 but inspections plummeted 50 percent.

Some Kansas and Missouri complaints that appeared serious didn’t result in an inspection, much less publicly-documented violations.

Debbie Berkowitz, a worker health and safety program director for the National Employment Law Project (NELP), said OSHA responded to almost no COVID-19 complaints with inspections.

“They just essentially ignored the complaints,” Berkowitz said in an email. “All they did is send a letter to the employer and tell them to look at a few websites, and then they closed the cases.”

In Kansas and Missouri, there were complaints that COVID-positive employees, or those with COVID-like symptoms, were allowed on the job and that masks or social distancing weren’t required.

NELP reported last year that the number of OSHA inspectors had fallen to a 45-year low. At current staffing levels – 862 inspectors at the beginning of 2020 – NELP projected it would take 165 years to inspect each workplace under the agency’s jurisdiction just once.

“OSHA is just incredibly understaffed,” said David Muraskin, a lawyer for Public Justice, a nonprofit legal advocacy organization, who represented RCWA in the Smithfield lawsuit. “The process is immensely slow.”

OSHA didn’t respond to questions for this story.

President Joe Biden in January directed OSHA to focus on COVID-19-related violations in workplaces that put the largest number of employees at risk. On March 12, the agency launched a “national emphasis program” on COVID-19 enforcement.

“This program seeks to substantially reduce or eliminate coronavirus exposure for workers in companies where risks are high, and to protect workers who raise concerns that their employer is failing to protect them from the risks of exposure,” Jim Frederick, OSHA’s director, said in a news release earlier this month.

Half-measures

Biden’s new enforcement push comes after a year in which workers across the country, including in Kansas and Missouri, feared employers weren’t doing enough to respond to the virus’s ever-present threat.

One former Smithfield employee at the Milan plant told The Star that workers expressed concern among themselves when they learned about the coronavirus as it started emerging in the United States early in 2020.

The former employee, who spoke to The Star on the condition of anonymity because a relative still works there and fears retribution, recalled how another employee who worked in close quarters with others started coughing.

There was no on-site testing and no one was sure whether the employee was sick.

“And we were all working together side by side, shoulder to shoulder,” the employee said. “So she went and asked for a mask and they told her that they couldn’t give her one because it was like she didn’t need one. I honestly don’t think that they were worried about the employees.”

The employee said the company started adopting more workplace safety measures after the RCWA lawsuit was filed and drew attention in the press. She called the new safety initiatives “half-measures.”

Smithfield vigorously denied that it sidestepped worker safety at Milan. A spokesperson email in response to questions by The Star included testimonials from three employees who lauded the company’s efforts to keep the workplace safe.

“And as a company, we have seen extremely low case counts within our U.S. workforce over a sustained period, even amid spikes in surrounding regions,” said Lombardo, Smithfield’s chief administrative officer. “This includes Milan. Again, while our employees have continued to provide food, we have seen very low case incidence over a sustained period.”

The federal agency at that time was non-committal about what safety standards it could enforce against meatpackers. RCWA lawyers questioned how quickly OSHA could act during a health crisis, compared to the courts that could issue an injunction in short order.

Muraskin, the lawyer who represented the RCWA, said that while OSHA eventually did inspect the plant, the process of working with the agency dragged on while a pandemic crisis took hold across the country.

Data from OSHA shows two complaints about the plant, one in May and another in October. The May complaint said there was “imminent danger” of another outbreak among workers, citing a failure to social distance on the slaughter line and insufficient contact tracing and testing.

The October complaint alleged an employee had recently died from COVID-19 and that leave policies had been changed. It said the change made it difficult for infected workers to take sick leave and avoid being penalized for time away. It also repeated concerns that employees weren’t spaced far enough apart.

In both instances the cases were closed without listed violations. A Freedom of Information Act request by the Star for the investigative file remains pending.

Muraskin said the RCWA lawsuit resulted in some changes inside the Smithfield plant in Milan, but was still inadequate.

“My general impression was that there was generally a sense that there was not enough, particularly that workers remained crowded on the lines,” Muraskin said. “This is both a failure of OSHA and a failure of Smithfield.”

Smithfield insisted it continues to monitor employee health at Milan.

“A year has passed. We continue to engage with health agencies. We have deployed third-party medical providers to our facilities,” Lombardo said in a statement. “We have engaged with health researchers and with leading worker advocacy groups, including multiple site visits by the nation’s largest and oldest Hispanic organization – the League of United Latin American Citizens.”

Triage system

Congress created OSHA in 1970 and tasked it with ensuring safe conditions in most private sector workplaces. The agency proudly notes that since then workplace deaths have fallen from 38 a day on average to 14 in 2018.

But just a few hundred inspectors cover workplaces employing 180 million.

Even in normal times, OSHA deploys a kind of triage system to focus the work of inspectors. Priority is given to situations that pose imminent danger, severe injuries and illness, worker complaints, referrals from other government agencies, high-hazard industries and follow-up inspections.

The pandemic pushed the triage system to the breaking point by forcing OSHA to confront a crisis that simultaneously affected every workplace and relied on evolving public health guidance.

Seeking to protect their own workers, OSHA suspended most on-site inspections, the Inspector General’s report said. The agency in many cases switched to remote inspections conducted via phone or videoconference, which worker advocates say makes it easier for employers to hide shortcomings.

The scaling back of on-site inspections coincided with a growing number of complaints – meaning that OSHA handcuffed itself just as demand for its services were growing.

“Given the increase in complaints, the OSHA’s reduction in total inspections, and its significant reduction in on-site inspections, there is an increased risk that OSHA has not been providing the level of protection that workers need at various job sites,” the report said.

Defenders say the agency did the best it could under extraordinary conditions.

“Were they prepared to handle the numbers? No, nobody would have been prepared for them,” said Edwin Foulke, who led OSHA under President George W. Bush.

He said the agency did its best with the complaints given the restrictions on in-person inspections.

“And then to try to point fingers at somebody and say, ‘well, you could have done better,’ well, we can always do better,” he said. “Did they do poorly? And I would say I don’t think they did poorly. I think they did what they could knowing what they could.”

While OSHA has issued guidance to employers throughout the pandemic, based on information from the Food and Drug Administration and the Centers for Disease Control and Prevention, the recommendations are voluntary. Inspectors can’t issue citations or fines based on lack of compliance.

“Even when they could do an inspection, it was much more difficult to determine exactly what was violated,” said Travis Rhoden, a senior editor at J.J. Keller & Associates, a Wisconsin-based workplace safety consulting firm.

“You go into a place of business, nobody’s wearing face coverings, for example. What exactly do we cite?” Rhoden said. “We know it’s a good idea, but there’s no OSHA standard.”

Tara Eberline, a lawyer who advises employers for the Overland Park, Kan., office of the law firm Foulston Siefkin, said OSHA issues specific safety standards for certain industries, covering matters like the use of respirators in healthcare.

But for workplaces for which OSHA has not developed specific standards, it uses a “general duty clause,” which says employers should provide a workplace that’s free from hazards that it should be able to recognize.

The catch-all standard has been invoked at times to cite employers during the pandemic, but advocates are pushing OSHA to adopt an emergency temporary standard (ETS) on COVID-19 safety. That would create legally-enforceable rules for workplaces. But the agency hasn’t issued such a measure since 1983.

A January executive order signed by Biden required OSHA to consider whether to issue an ETS to impose a mask rule. If OSHA decided a standard was needed, it was required to issue one by March 15, but the day passed without an announcement.

‘A hush hush thing’

On August 24, National Nurses United called for inspections of all hospitals owned by HCA Healthcare, which includes Research Medical Center in Kansas City.

A complaint was filed against the hospital with OSHA the same day. It followed others in April and May, alleging a lack protective gear and shoddy cleanliness practices, such as a nurse being moved from a “dirty COVID unit” to a “clean unit.” The August complaint said workers who are potentially positive were expected to show up as long as they were asymptomatic.

OSHA initiated two inspections, one in April and another in August, but both cases were closed with no violations listed.

Tanyece Stephens, a secretary in food services, said in the past workers weren’t as protected as they should have been because of a lack of proper masks. Concerns over PPE have subsided, however.

Stephens doesn’t know what role, if any, OSHA played.

“They didn’t tell us about it. That was kind of a hush hush thing so they could correct it without everybody knowing about it,” Stephens said before a vigil outside the hospital this month to mark the one-year anniversary of the start of the pandemic. “If they came in, they didn’t tell us.”

Brenda Davis, an organizer with Service Employees International (SEIU), the union that represents some workers at the hospital, said OSHA sent notices to the hospital calling for corrections.

“But that’s about it as far as what I know,” Davis said.

A spokesperson for HCA Healthcare said OSHA’s review resulted in no citations or request for corrective action. The Star has filed a FOIA request for inspection information, but the request is still pending.

“Since the onset of the pandemic, Research Medical Center’s top priority has been to protect our colleagues and keep them employed, so they are able to provide high-quality, compassionate healthcare to our patients,” spokesperson Christine Hamele said in a statement. “Our focus is putting an end to this pandemic through the successful vaccination of our colleagues, in addition to clinical treatments and prevention efforts within our community.”

“Our frontline caregivers have shown unwavering commitment to our patients, with courage and passion,” Hamele continued. “We are proud of our response and the significant resources we’ve deployed – including offering all eligible colleagues vaccinations – to protect them.”

Frustrated with OSHA’s pandemic performance, advocates are calling for robust change at the agency. Goldstein-Gelb, the co-executive director of the National Council for Occupational Safety and Health, said at a minimum OSHA’s budget and the number of inspectors should be doubled.

The annual budget is roughly $592 million, a relatively paltry sum for an agency with such an expansive mission. By comparison, the Environmental Protection Agency’s budget is about $9 billion.

“There is absolutely congressional action needed,” Goldstein-Gelb said.

Sen. Jerry Moran, a Kansas Republican who sits on a subcommittee that oversees the Department of Labor, said any increase in resources should be included in the Department of Labor’s budget request and considered during Congress’s annual appropriations process.

“This past year, the Occupational Safety and Health Administration has received an influx of complaints regarding COVID-19, and it is important that every employee in any industry has the protection and resources they need to safely carry out their work,” Moran said in a statement. “While OSHA hasn’t been able to carry out as many on-site inspections due to the pandemic, the administration has not expressed the need for additional resources.”

The $1.9 trillion American Rescue Plan signed by Biden includes at least $100 million for the agency, however. It also sets aside a minimum of $5 million for enforcement in high-risk workplaces, such as meatpacking plants.

Hope for standard

Muraskin, the lawyer representing RCWA in its lawsuit against Smithfield, said he has submitted a FOIA request for the result of the OSHA investigation of the Milan plant. Like The Star, he has not yet received it.

But he sees signs that OSHA may take worker concerns more seriously in the current administration. Particularly if it does end up adopting an emergency temporary standard specifically for COVID-19.

The National Law Review reported on Thursday that the U.S. Department of Labor has told business groups that it still plans to issue an emergency temporary standard, despite missing its March 15 deadlines, and that the White House has a draft of the standard that it is reviewing.

“Whether the companies are willing to follow those,” Muraskin said, “and how much OSHA is able to get them to do so through quick enforcement I think will be the early tale the tape.”

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