In South Dakota, the virus struck hundreds of workers at a single pork processing plant. In Illinois and Michigan, a half dozen grocery workers died and others fell ill. In New York, COVID-19 has claimed the lives of dozens of transit employees. Among health care workers, at least 27 have died and 9,200 have contracted the virus.
As the country contemplates returning more employees to work and reopening the economy, the key federal agency tasked with ensuring workplace safety is drawing withering criticism from advocates who say the U.S. Occupational Safety and Health Administration is falling down on the job.
“OSHA has been totally absent from the response,” said David Michaels, an epidemiologist and public health professor at The George Washington University who oversaw the agency during the Obama administration from 2009 to 2017. “It is shocking and disheartening because OSHA should be out front leading the federal efforts to protect workers.”
Under federal law, the agency has jurisdiction over most workplaces in the country and can issue regulations and enforce them with inspections, citations and legal action. In recent weeks, OSHA has issued guidance on how to keep workers safe, such encouraging employees who are sick to stay home and providing hand-washing stations. But the guidance is “advisory in nature” and “creates no new legal obligations.”
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The agency says it has “a number of existing enforcement tools it is using to help address worker protections against COVID-19.” They include an overarching authority to make sure companies provide workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
“OSHA can and will use enforcement, as necessary, to ensure the protection of workers exposed to COVID-19,” OSHA said in a statement provided to USA TODAY.
The agency declined to say how many complaints related to the coronavirus outbreak it has received or what enforcement actions it has taken.
According to a Bloomberg Law report, since March 1, OSHA fielded 1,819 virus-related complaints and 52 employer-reported cases. The Washington Post reported Thursday the agency has received 3,000 such complaints since January.
At least one of those came after a big-box store employee in Illinois died March 25. A lawyer for his estate asked OSHA to open an investigation into his death, but the agency said it couldn’t, according to a voicemail message from an agency official.
“OSHA does not have any jurisdiction on enforcing anything related to COVID-19 at this time,” the official said in an April 6 message provided by the lawyer to USA TODAY. The official said the most OSHA could do was notify the employer. OSHA did not immediately respond Thursday to questions about the voicemail.
Workers ‘lost faith in organizations’
Willie Martin says his mom, Annie Grant, was a tiny woman with a huge personality who gave him hugs as needed and loved to chat with the grandkids on FaceTime.
Until three weeks ago, when the 55-year-old became sick in Camilla, Georgia, where she’d worked at the local Tyson Foods chicken processing center for more than a decade.
Grant died April 9, one of at least three employees in the giant poultry plant to die from COVID-19 within a week.
“It’s something that’s hard to get over for me and my siblings,” Martin said. “I feel like this is a dream and I’m going to wake up and my mom’s going to call me.”
Edgar Fields, regional director for the Retail, Wholesale and Department Store Union, said employees and representatives had complained for weeks to Tyson about “elbow-to-elbow” working conditions and a lack of protective gear, to no avail.
Hector Gonzalez, a senior vice president at Tyson Foods, said in a statement the company is “heartbroken over the loss of team members from our family at Camilla, Georgia.”
“The COVID-19 pandemic has devastated communities in southern Georgia and throughout the world,” he said, adding the company has implemented measures to protect employees, including by installing workstation dividers and providing more break room space.
Fields said employees often feel seeking government help is a waste of time.
“A lot of these workers have lost faith in organizations that are supposed to protect you,” Fields added. “I don’t see anything that OSHA’s doing to make a difference for workers’ safety … Workers are secondary to whatever they’re doing – or whatever they’re not doing.”
A push for emergency standards
Deborah Berkowitz, a former OSHA senior policy adviser now with the National Employment Law Project, said the agency exists because some companies can’t be trusted to do the right thing on their own.
She singled out meat and poultry plants, which she said had high injury and illness rates before the pandemic.
“Why would you think they would voluntarily take the right steps for COVID-19 when they don’t really take the right steps for other traditional health and safety hazards?” Berkowitz said.
She and other advocates, including unions, want OSHA to issue emergency temporary standards for the coronavirus pandemic. The AFL-CIO joined with a number of other large unions last month to petition the agency to issue such standards covering an array of concerns, including protective gear, medical screening and training.
“OSHA has the obligation to ensure the health and safety of all working people, particularly from an infectious disease such as this coronavirus,” the labor groups wrote in a petition to Labor Secretary Eugene Scalia.
OSHA declined to say whether it plans to issue an emergency standard and pointed instead to a list of guidance the agency already issued and authorities it already has.
The agency created a regulation for blood-borne diseases in the early 1990’s in response to HIV/AIDs. It imposes requirements for industries where workers may be exposed to blood products or bodily fluids, including protective measures and training.
After H1N1 flu hit in 2009, OSHA started to draft a standard to prevent the spread of airborne diseases like coronavirus in healthcare workplaces, but the effort was shelved when Trump took office, a move Michaels and other former Obama administration officials decried.
“This administration is opposed to regulation,” Michaels said. “They have to be dragged kicking and screaming into any requirements on corporations.”
The general duty standard, which the agency says it is relying upon to force companies to provide worker protections for coronavirus, can be difficult to interpret and enforce.
Still, Michael LeRoy, an employment law professor with the University of Illinois at Urbana-Champaign, said it can be applied, though OSHA should clarify exactly what is required.
“I don’t think it’s fair to knock them at this point,” LeRoy added. “(But) now is the time to speak up … we now have enough information to say, ‘If we have a grocery store worker who is not behind a plexiglass screen,’ and you can fill in the rest.”
Lawyer: weak enforcement ‘ridiculous’
Walmart employee Wando Evans was 51 years old and had been an overnight stock and maintenance worker for more than 15 years at the retailer’s store in Evergreen, Illinois, before he died March 25.
The lawyer for his estate, Tony Kalogerakos, filed what may be the first wrongful death lawsuit related to coronavirus, alleging Evans contracted the disease at work.
The lawsuit claims Walmart supervisors failed to follow cleaning, social distancing and other safety guidelines; didn’t tell Evans and others that coworkers had COVID-19 symptoms; and didn’t provide workers with protective gear. One of Evans’ coworkers died from the virus a few days after he did, according to the complaint.
The OSHA official said in the voicemail declining to investigate the death that the only thing she could do was tell Walmart she had received a complaint and send the retailer information about Centers for Disease Control and Prevention safety guidelines.
“It’s ridiculous,” Kalogerakos said. “Why even make the recommendations in the first place?”
Walmart spokesman Randy Hargrove said cleaning and sanitizing measures were reinforced, and the store passed a health department inspection. The company, he said, has taken steps across the country to protect workers and customers.
On Monday, OSHA issued enforcement guidance saying complaints affecting workers with a high risk of exposure to coronavirus patients in certain health care jobs may result in on-site inspections.
But that likely doesn’t apply to Walmart, Tyson Foods or thousands of non-medical businesses; OSHA said complaints from essential workers in other sectors will typically trigger only a letter asking the employer to investigate and respond with a description of any corrective action taken. If an adequate response is not received, OSHA may conduct an inspection.
“Those workplaces are – let’s put it this way – are highly unlikely to get inspected, which is how I read the protocol to be,” said Michael Felsen, former regional counsel for the U.S. Department of Labor who is now a fellow at Justice at Work, an advocacy organization in Boston.
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Matt Deffebach, an attorney who specializes in OSHA cases, said employers rely on experts, especially the U.S. Centers for Disease Control, to identify known hazards and proper protective measures.
COVID-19 is clearly hazardous, he added, but there is uncertainty about abatement methods, in part because safety precautions vary for each job and industry.
Standards also are evolving with time. Deffebagh noted in early March he attended a Bar conference on occupational safety and health with more than 100 lawyers, including some who work for OSHA. During the California gathering, handshakes were common and there was no social distancing.
“We were all sitting around conference tables,” Deffebach said. “It wasn’t that long ago, but it seems like a year ago.”
A patchwork of worker protection
Some state and local authorities issued their own mandates for workplaces operating as the virus continues its deadly spread.
In Connecticut, Gov. Ned Lamont directed state agencies to issue “legally binding statewide rules” that include, among other requirements, masks, plexiglass shields at checkout stands and six-foot markers for customers waiting in line at retail establishments. Washington state has issued similar rules requiring social distancing, hand-washing and hazard training.
In San Diego, the county public health officer issued restrictions including requirements that employees in childcare, food services, transportation, banks and other essential businesses wear cloth face coverings during times of public contact. Social distancing is mandatory, and emergency regulations warn “any business failing to successfully implement social distancing and sanitation shall be closed.”
“I think you’re going to start to see slowly more and more states and more and more counties moving in that direction,” said Tressi Cordaro, a partner in the Virginia office of law firm Jackson Lewis and chair of the firm’s Workplace Safety and Health Practice Group.
In the meantime, employee safeguards are a patchwork.
In San Francisco, bus driver Roger Marenco said he grew more and more fearful as coronavirus spread through the city, especially among people who are homeless.
Drivers were not given masks, said Marenco, president of Transport Workers Union Local 250A, or gloves or hand sanitizer. The San Francisco Municipal Transportation Agency said it began providing gloves and sanitizer in early March and masks on April 3, after local health officials recommended them.
Marenco said drivers still feel endangered. He said it seemed pointless to complain to OSHA – a slow, bureaucratic tangle up against a fast-moving pandemic – so he and some colleagues “went rogue,” covering up cash boxes and putting markers on bus floors for social distancing.
When administrators questioned his authority to take such actions, Marenco said he told them: “I have the authority to protect the health and safety of our members. And their lives are in jeopardy right now.”
Maria Perez of the Milwaukee Journal Sentinel, a member of the USA TODAY Network, contributing.