OSHA has rolled back safety standards and virtually eliminated non-health care workers from government protection

OSHA has rolled back safety standards and virtually eliminated non-health care workers from government protection John Nacion/STAR MAX/IPx/AP

Millions of Essential Workers Are Being Left Out of COVID-19 Workplace Safety Protections, Thanks to OSHA

Even as the federal worker-safety agency has been inundated with complaints, it has rolled back safety standards and virtually eliminated non-health care workplaces from government protection.

As news emerged that the novel coronavirus was infecting hundreds of workers in meatpacking plants, Gregoria Rivas began worrying that her chicken processing facility in North Carolina wasn’t doing enough to protect workers like her from the virus.

There was no social distancing, she said. Everywhere she went at the Case Farms plant, there were dozens of workers crowded into a small space. In the locker room, where everyone put on their uniforms. On the cutting line, where she spent eight hours slicing chicken breasts. In the cafeteria during lunch. Even at break time, when workers lined up to use the bathroom.

“I tried to bring my own face mask that I had bought at the pharmacy, but they wouldn’t let me wear it,” said Rivas, 31. “When they wouldn’t let me wear my own mask, I went to the nurse’s station at the plant, and they said there were no masks available.” (Mike Popowycz, vice chairman of Case Farms, said it’s taking the pandemic “very seriously” and has taken several measures to protect workers.)

So Rivas said she called the state’s Department of Labor with the help of a local worker’s center.

Rivas is far from alone. Nearly 4,000 workers from across the country have gone to the federal agency that polices worker health and safety with concerns that their employers haven’t done enough to protect them from the coronavirus as of April 3, according to records obtained in a Freedom of Information Act request from the U.S. Occupational Safety and Health Administration.

Some 27% of the complaints to OSHA came from the health care industry, from workers on the front lines of providing COVID-19 care. Another 72% came from other types of employees, with large quantities from manufacturing and retail workers, with the remainder listed as unknown.

Even as OSHA has been inundated with COVID-19-related complaints, the agency has issued a series of guidelines that roll back safety standards and virtually eliminate non-health care workers from government protection.

That poses a serious risk to millions of essential workers, many of whom live paycheck-to-paycheck, safety advocates say. Dozens of workers, including meat cutters, supermarket greeters, airport screeners and bus drivers have died as the disease has spread.

And it raises significant questions as President Donald Trump and several governors lay out plans to reopen the economy.

“Workers are getting sick and dying, and the government agency that they have turned to for 40 years to protect them from everything from chemicals in the workplace to unguarded machines to the H1N1 pandemic has said, ‘Sorry, you’re on your own,’” said Debbie Berkowitz, a former top OSHA policy adviser now at the worker-oriented National Employment Law Project.

A spokesperson for the Department of Labor, OSHA’s parent agency, said in a statement: “Since the emergence of COVID-19, OSHA is taking swift and decisive action to protect workers in high-risk industries.” The statement continued: “OSHA has a number of tools it can use to protect workers from workplace hazards caused by COVID-19. … However, OSHA is providing enforcement discretion to help employers comply with OSHA requirements during the challenging times the pandemic has created and to help ensure that PPE [personal protective equipment] is available in workplaces — including healthcare facilities — where it is needed most.”

The government has received a raft of complaints from non-medical workers in an array of non-medical industries.

More than a dozen employees at an Intel computer chip fabrication plant in Oregon filed reports with the state worker protection agency saying they weren’t able to maintain a 6-foot distance from their co-workers. “You have to be literally 2 inches from someone’s face or body,” said Brent Macias, one of the employees who filed a complaint and developed coronavirus symptoms. A spokesperson for Intel said the company is taking steps to implement social distancing at its manufacturing sites, such as staggering shift changes and limiting activities that require close proximity.

In Florida, 35 fast food workers at the Orlando airport filed a complaint with the federal OSHA claiming that their employer, HMSHost, sometimes failed to offer hot water to wash their hands and provided them with little protective gear. “They were not helping us,” said Maria Gonzalez, a cashier who made $11.21 an hour before being furloughed in late March. “They were not doing anything — no training, no gloves, no masks, no hand sanitizer — pretty much nothing to protect us.” At least one HMSHost employee at the airport has tested positive for COVID-19, according to a union organizer who spoke with the ill worker. (Spokeswoman Sheila Bliss said HMSHost has implemented protective and safety measures that go beyond recommendations by the Centers for Disease Control and Prevention. “Our associates and travelers remain our greatest concern and we will take all recommended measures to protect them,” she said.)

Over the past two weeks, OSHA and the CDC have issued a series of guidelines and directives that have weakened protections for front-line workers outside the medical field. For example, the CDC released guidance on April 8 that critical workers who’d been exposed to the coronavirus could return to work as long as they don’t have any symptoms and wear a mask. The guidance came despite comments just three days earlier from the government’s top infectious disease expert, Dr. Anthony Fauci, that 25% to 50% of the people with the virus may be asymptomatic. (Everyone else who has been exposed is advised to self-quarantine for 14 days.)

This was followed by directives from OSHA. Last Friday, the agency announced that it would not require employers outside health care, emergency response or corrections to investigate whether COVID-19 cases among employees are work-related unless multiple people in the same vicinity get sick.

Then on Monday, OSHA issued an enforcement directive detailing its approach to handling COVID-19 complaints. Medical workers, who have been heavily affected by the virus, have been prioritized. At least 88 U.S. health care workers have died from COVID-19, according to an unofficial list kept by the website Medscape.

But OSHA said it would not formally handle any complaints about the coronavirus from other essential workers. Instead, the agency will send a letter to the employer, which then has five business days to notify the agency about how it has addressed the complaint. The memo notes that these complaints “will not normally result in an on-site inspection.” The agency said it would “consider” an inspection if it believes the response is inadequate.

“It totally excludes everybody but health care,” said David Michaels, former OSHA director in the Obama administration. “Everyone else is told that there is nothing that OSHA could do.”

But Ed Foulke, who oversaw OSHA from 2006 to 2008, said the agency is correct to establish priorities when there are limited resources and inspectors are working from home. “This is an unprecedented event and the reasonable approach is to say, ‘Where is the greatest need?’” he said.

“OSHA clearly cares” about non-medical workers, Foulke said. “An inspector can’t be sent out for every complaint. You can’t do it. You have to be realistic.”

Still, the Trump administration’s approach differs from how other infectious diseases have been handled in the past, from the hepatitis B outbreak in hospitals and the AIDS epidemic in the 1980s to H1N1 and the Ebola virus in more recent years, according to longtime industry professionals. In each of those cases, OSHA issued more forceful enforcement guidance and carried a stronger public presence. Now, the agency isn’t even on the White House Coronavirus Task Force.

For example, during the H1N1 flu pandemic in 2009, OSHA took additional steps to safeguard worker health, including issuing a directive that required employers to abide by CDC guidance. By contrast, OSHA’s COVID-19 memo states that inspectors should consult CDC guidance and grants them latitude to use discretion even when an employer’s measures are not as protective as what the CDC recommends.

In addition, during H1N1, OSHA laid out specific scenarios that could result in violations under the general duty standard, detailing the nitty-gritty of sneeze guards and the setup of “airborne infection isolation rooms.” Today, the Trump administration provides no such guidance for inspectors; in fact, it emphasizes the high legal bar for inspectors to cite employers under the standard.

“It’s written to make it much more difficult to issue citations,” Michaels said. “It gives the employers certain outs as to why they’re not following CDC guidelines.”

There have been no inspections resulting from COVID-19 complaints, said one OSHA employee — at least not in the OSHA region the employee works in. The OSHA staffer added that the agency could be more proactive in its response to these complaints. “It seems a lot of it is providing workers with information but not trying to address the particular issues people are raising,” the employee said. “We should be more forceful and direct in our interactions with the employer.” The OSHA employee asked to remain anonymous because the worker is not authorized to speak with reporters.

OSHA is limited in how it can respond because it doesn’t have a regulation it can enforce that’s directly related to airborne infectious diseases. (OSHA notes that there are eight regulations that may apply to coronavirus, including provisions related to hand-washing, personal protective equipment and an employer’s general duty to provide a safe workplace.)

But there are ways OSHA could have been more active, former agency officials and worker advocates say.

For example, an infectious disease standard was being drafted, but was never completed, during the Obama administration. It was shelved when Trump took office, according to federal rule-making documents.

In late January, as the coronavirus was spreading in China and beginning to arrive in the United States, Democratic congressional aides met with Department of Labor staff to urge them to issue a compliance directive and temporary emergency standard to protect health care workers.

Such a standard could easily be adapted to confront COVID-19, but Labor Department leaders questioned the need, a congressional aide who was at the meeting said. “There wasn’t a whole lot of consciousness about what was going to be coming down the line,” the aide said. “I think they weren’t taking the disease seriously and they certainly weren’t interested in enforcing.”

As COVID-19 cases began to multiply in early March, unions petitioned Labor Secretary Eugene Scalia, requesting an emergency standard for health workers. And House Democrats began drafting language to insert into a coronavirus response bill that was rapidly working its way through Congress. The legislation would have required health care employers to implement an infectious disease exposure control plan. But the American Hospital Association said the provision would be “impossible to implement” because of the shortage of N95 respirator masks and would dramatically reduce the number of patients hospitals could treat. Congress stripped it from the bill.

Meanwhile, as America’s health care system began raising red flags about the shortage of safety gear, OSHA started issuing the first of several directives, rolling back standards intended to protect doctors and nurses. In mid-March, the agency suspended annual fit testing for N95 masks in an effort to conserve equipment.

As recorded cases reached the thousands, it issued a packet of tips for employers but emphasized that its recommendations were not enforceable.

In early April, as the supply shortage became ever more critical, OSHA relaxed other rules, allowing for the extended use and reuse of N95s and for respirators certified in other countries.

“Some of these, you are dealing with a crisis situation, they are moving to address the lack of equipment,” said Peg Seminario, former health and safety director of the AFL-CIO. “But every one of these is rolling back existing protections and requirements. It’s not putting out something new or more.”

The agency has been diminished in resources and leadership under the Trump administration, and former OSHA officials say that has dulled the agency’s response to COVID-19. “Their ability to deal with this virus is made even weaker by a lack of resources because the Trump administration has shrunk the agency to the point that they have no ability to respond,” said Berkowitz.

At the start of the year, OSHA had 862 federal inspectors, the lowest number in the agency’s history, according to data NELP obtained from the agency.

With OSHA playing a passive role, some governors have issued their own worker-safety mandates. On Sunday, New York Gov. Andrew Cuomo issued an executive order requiring employers to provide essential workers with masks to wear when they interact with the public. New Jersey Gov. Phil Murphy went further, ordering retail businesses to cut their maximum occupancy in half and install barriers between workers and customers.

Twenty-two states run their own occupational health and safety agencies for public and private workers, with federal approval, which are required to match or exceed federal regulations and directives. Some of them appear to be taking a more aggressive approach. In Oregon, where there have been nearly 2,800 COVID-19-related complaints to date, about a dozen inspections have been conducted across a variety of industries. The state agency is also conducting “spot checks” to ensure that employers who received and sent letters in response to a complaint are following through.

But a patchwork approach to keeping workers safe might not bode well for the plans to reopen businesses. In recent days, many of the largest outbreaks have been at work, highlighted by the spread of the disease to more than 600 workers at Smithfield Foods’ pork processing plant in Sioux Falls, South Dakota.

That could raise the prospect of the disease reigniting if more precautions aren’t taken, according to public health experts. “Until there’s a real discussion about how workers beyond hospitals are going to be protected,” Michaels said, “I don’t see how we can be talking about bringing workers back.”

And that discussion could mean a lot for workers like Gregoria Rivas.

In North Carolina, Rivas said she received little help from the state’s OSHA when she called to voice her concerns around the possible spread of COVID-19 at Case Farms. On the other end of the phone line, Rivas said, an inspector took down her complaint but told her there wasn’t much the agency could do because it doesn’t have specific regulations for infectious diseases. The agency had made recommendations to businesses, but it had no power to enforce them, the inspector said.

(Natalie Bouchard of North Carolina’s Department of Labor said the agency investigates every complaint. In a statement, she confirmed the state has no occupational safety standard concerning COVID-19 but added that “it is the employer’s duty to provide each employee with a ‘place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or serious physical harm to his employees.’”)

Discouraged by the response, Rivas, who has a 2-year-old son and 8-year-old daughter, decided to quit rather than risk infection. “I thought I was going to receive some answers that would reassure me,” she said. “But from what I understood, it didn’t matter what was happening, whether it’s a pandemic or not, the plant was going to continue working as normal.”

Do you have access to information about how the government is protecting — or not protecting — essential workers from the coronavirus that should be public? Email bernice.yeung@propublica.org.

Here’s how to send tips and documents to ProPublica securely.

Ryann Grochowski Jones, Ellis Simani and Melissa Sanchez contributed reporting.

This article was originally published in ProPublica. It has been republished under the Creative Commons license.  ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for their newsletter.

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