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Special Report: U.S. regulators ignored workers' COVID-19 safety complaints amid deadly outbreaks

[January 06, 2021] By Chris Kirkham and Benjamin Lesser

(Reuters) - Miguel Cabezola, a driver for United Parcel Service Inc in Tucson, Arizona, complained on March 27 to U.S. workplace safety regulators, alleging the company was taking a lax approach to social distancing, sanitizing equipment and quarantining workers with COVID-19 symptoms. He hoped for an inspection of the facility that would force changes to protect worker safety.

Instead, the state arm of the U.S. Occupational Safety and Health Administration (OSHA) summarized Cabezola's concerns in an email to company management, reviewed the UPS response and closed the file.

Over the next two months, a COVID-19 outbreak infected more than 40 Tucson UPS workers - including a manager who eventually died - and caused delivery delays throughout southern Arizona, according to interviews with six Tucson UPS workers and local union officials of the International Brotherhood of Teamsters.

Cabezola's complaint to the regulator, along with that of another worker in May, had "zero effect," said Karla Schumann, head of the local Teamsters union representing UPS workers. Asked about the outbreak, UPS expressed regret about the manager's death and said it has strengthened protocols requiring social distancing and sanitation since the early days of the pandemic.

The UPS outbreak is among dozens of cases identified by Reuters where OSHA largely disregarded workers who reported lax pandemic safety practices, according to agency records.

Reuters identified the workplace outbreaks through federal, state and local government data and news accounts detailing infections and deaths. The news agency examined the regulatory response through OSHA data on complaints filed by workers and records of resulting inspections.

Reuters identified 106 U.S. workplaces where employees complained of slipshod pandemic safety practices around the time of outbreaks - and regulators either never inspected the facilities or, in some cases, waited months to do so, according to the OSHA records. The agency never inspected 70 of those workplaces, where at least 4,500 workers were infected by the coronavirus and 26 died after contracting COVID-19, according to the Reuters analysis.

The workers' regulatory complaints came from a cross-section of companies that included some of America's best-known firms, including Tesla Inc and Tyson Foods Inc .

As of mid-December, just 12 of the 106 facilities have been penalized in response to workers' complaints. The complaints came from a wide range of workplaces, from meatpacking plants and factories to e-commerce warehouses and nursing homes. Their employees alleged failures to enforce social distancing and mask-wearing; managers pressuring sick employees to work; and a lack of notification to employees about co-workers' infections.

The 106 cases represent a sample of how OSHA has responded to the public health crisis. Reuters was unable to conduct a comprehensive examination of how the agency responded to safety complaints, infections and deaths because most state and local governments do not track or publicize data on workplace outbreaks.

UPS spokesman Matt O'Connor said the company's safety practices have evolved over time as health authorities updated public guidance about COVID-19 and as personal protective equipment became more available after early shortages. The company, he said, had appropriate infection-control protocols in place at the time the manager died. He said UPS takes "swift action" in response to workers' reports of lax safety practices.

The federal agency's acting leader, Loren Sweatt, said in a statement that the allegations in the cases the news organization cited do not reflect the totality of OSHA's efforts to keep workers safe and "unfairly disparage dedicated OSHA inspectors across the country."

Trevor Laky, a spokesman for Arizona's OSHA affiliate, said the agency was not aware of the Tucson UPS manager's death until Reuters inquired about it in December.

All companies are required to report work-related deaths to OSHA. O'Connor, of UPS, said the firm did not report the manager's death from COVID-19 - amid a workplace outbreak - because its own contact tracing determined that the manager had not been in close contact with infected employees.

Laky, of Arizona OSHA, said the agency has no plans to investigate the matter further after UPS told regulators that the death was not work-related.

OSHA is the nation's workplace safety watchdog, tasked with preventing on-the-job injuries and illnesses. Federal OSHA enforces workplace safety in about half of the states, while OSHA-affiliated state agencies carry out those duties in the rest of the country. State OSHA agencies are overseen by state governors and the federal agency and must, at a minimum, enforce federal workplace safety regulations.

When OSHA agencies receive worker complaints, officials decide whether to conduct inspections that can lead to fines and requirements to address dangerous working conditions. But regulators never inspected nearly two-thirds of the 106 workplaces where Reuters identified outbreaks, according to the OSHA data on worker complaints and agency workplace inspections.

Some of the remaining workplaces received an inspection months after the disease struck, often following negative publicity over outbreaks that sometimes included deaths. Of the 106 workplaces examined by Reuters, 27 had workers who died from COVID-19. OSHA inspected fewer than half of those 27 workplaces - despite agency guidelines saying COVID-19 fatalities should receive top priority.

Overall, federal and state OSHA agencies have conducted 44% fewer workplace inspections between March - when coronavirus started to spread widely in the United States - and the end of December, compared to the same period in 2019. The declining inspections came despite what one OSHA official, during congressional testimony in May, called a big increase in worker complaints because of the pandemic.

Even in workplaces that OSHA has designated as "high exposure risk" for COVID-19 infection - mostly healthcare facilities - few complaints lead to inspections. OSHA has closed out complaints from about 1,800 hospitals and nursing homes nationwide, but only about 15% of them have been inspected so far during the pandemic, the Reuters review of OSHA data shows. OSHA fined about one in five of those inspected facilities.

In a written statement, federal OSHA said that protecting workers from the pandemic is the agency's "top priority," and that it has conducted 1,396 COVID-19 inspections as of mid-December in workplaces with more than 618,000 employees. The U.S. agency said it investigates every complaint and has closed out more than 80% of the more than 13,000 COVID-19 complaints it had received through mid-December. That figure does not include the complaints made to state OSHA affiliates.

A Reuters review of state and federal OSHA case files on worker complaints, obtained through public records requests, shows those investigations were often cursory and rarely resulted in inspections. Instead, officials typically emailed employers a complaint summary, as they did with UPS, and asked for a response within a week. If the employer responded, the agency closed out the case.

Researchers at Harvard University's school of public health found a correlation between a rise in OSHA complaints in a specific region and a rise in COVID-19 deaths within four weeks in the same area. The peer-reviewed research, published in November, found that OSHA's failure to respond to such complaints "is a missed opportunity" to stop disease transmission in workplaces and the community at large.

NO COVID-19 STANDARDS, LOW FINES

The coronavirus pandemic has presented OSHA with a steep challenge in fielding thousands of additional complaints. And OSHA has historically been starved of investigative resources - a trend that continued during the Trump administration. The federal agency currently has fewer inspectors than it did in 1975.

Still, some former OSHA officials say the agency's hands-off response to the pandemic reflects a notable divergence from the past, even compared to prior Republican administrations that also favored a light touch on industry regulation.

"This is the sort of workplace crisis that OSHA was invented to address," said David Michaels, who led the agency during the Obama administration and is now a professor at George Washington University's school of public health. "OSHA needed to be more forceful and creative to use the tools it has, but it decided not to."

Former OSHA officials, along with public health experts, labor groups and lawmakers, argued beginning in the spring that OSHA should issue an emergency temporary standard requiring employers to follow specific infection-control practices such as mandating social distancing, requiring masks, and removing infected workers while providing them pay. OSHA issued no such standards, which critics say has made it difficult for the agency to hold employers accountable for pandemic-related violations.

OSHA said in a statement that it "has the regulatory tools it needs," citing general standards developed before the pandemic for respiratory protection and personal protective equipment in a wide variety of potentially hazardous situations. But none of the existing standards lay out specifics for handling an infectious disease such as COVID-19.

Five current and former OSHA employees told Reuters that the agency never developed an aggressive and focused strategy to respond to the pandemic. An OSHA field employee told Reuters that cases related to the pandemic often get slowed down by multiple layers of approval in regional offices and in Washington. The relatively small number of violations the agency has issued take months to process, the employee said.

"I'm not proud of what we've done," the person said.

The ineffectiveness reflects an overall neglect of the agency by the administration of U.S. President Donald Trump, the employees said. The administration has left many of the agency's top leadership positions filled by "acting" managers. OSHA has gone without a Senate-confirmed administrator for Trump's entire four-year term.

"What you're seeing with COVID is a function of not having a leader," said Kelly Schnapp, a former director of OSHA's Office of Science and Technology Assessment, who left the agency in 2019.

White House spokesman Judd Deere dismissed the suggestion that U.S. safety regulators had failed to properly address the pandemic. "OSHA's mission and focus has never wavered: Protecting America's workers on the job," he said in a statement.

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Business Representative for Teamsters Local 104 Carlos Toledo and Teamsters shop stewards and UPS workers Michael Sanchez and Nick Quijada pose for a photo in Tucson, Arizona, U.S., December 9, 2020. REUTERS/Caitlin O'Hara

Out of 1,396 federal OSHA inspections related to COVID-19, the agency has issued citations from 273 of those cases through mid-December, averaging about $13,000 each. That includes fines for meat-packing giants Smithfield Foods Inc and JBS USA, which have had severe outbreaks. Smithfield received a penalty of $13,494 for a violation at its Sioux Falls, South Dakota plant, where four workers died and nearly 1,300 workers were infected. JBS' citation was for $15,615 at its Greeley, Colorado plant, where six died and 292 tested positive. Both companies are appealing the fines.

Some of the federal OSHA citations came with no fines at all. The largest penalty ever issued by OSHA was an $81.3 million fine to BP Products North America Inc in 2009, following a 2005 refinery explosion in Texas that killed 15 workers and injured 170 more.

GUTTING REPORTING REQUIREMENTS

In late September, OSHA weakened its guidelines for when employers must notify the agency about workers who are hospitalized with COVID-19. Previously, employers were required to notify OSHA of all "work-related" hospitalizations of employees with COVID-19.

Then the agency changed its guidance to require notification only in cases where an employee is hospitalized "within 24 hours of an exposure" to the coronavirus at work. The guidance gutted the notification requirement for two reasons: Coronavirus symptoms - much less hospitalizations - do not occur within 24 hours of virus exposure, according to public health experts, and the exact moment of infection is impossible to determine.

Since the new guidelines were announced, OSHA data shows, the average number of reported hospitalizations since October were 40% less than the average number reported from late March through September. The numbers have remained low despite the uncontrolled spread of the virus through much of the country over the last two months.

OSHA acknowledged to Reuters that employers are unlikely to report COVID-19 hospitalizations under the revised reporting rules. But it denied changing the rules, saying it was only clarifying existing regulations.

Michaels, the former OSHA leader under Obama, is now on President-elect Joe Biden's COVID-19 task force. He said the weakened reporting standards make it that much harder for OSHA to identify dangerous workplaces.

"By deciding to collect less information, OSHA then has less ability to respond," he said.

Biden pledged during the campaign to strengthen workplace standards for controlling the virus, and to boost the number of OSHA inspectors.

CASINO WORKERS IGNORED

In Las Vegas - which has hosted millions of tourists during the pandemic - workers at 25 different resorts across the city sent more than 60 complaints to Nevada OSHA about lax virus safety protocols between June and September.

To date, Nevada OSHA has conducted one COVID-19-related inspection of a Vegas casino - the Aria Resort. The case, prompted by a complaint about inadequate enforcement of mask-wearing and social distancing, is still open. MGM Resorts International, which operates Aria, declined to comment on the inspection but said it has strong health and safety measures.

Workers at the Cosmopolitan casino filed complaints to Nevada OSHA seven times from June through August, alleging that the hotel wasn't following state mandates on requiring guests to wear masks and keeping the casino at half capacity. Employees also alleged managers pressured them to work despite unsafe conditions.

"Employees have been informed that if they refuse to take a shift, they will then be terminated," read one complaint from late August. "Over 70 employees have tested positive and have quickly returned to working."

The Cosmopolitan did not answer questions about the total number of infected employees, and county health officials said they do not track workplace outbreaks. A state report from last summer, however, showed the Cosmopolitan ranked highest on a list of possible exposure points to COVID-19 in southern Nevada between June and July, based on interviews with those who were infected.

At the D Las Vegas casino, a worker complained in July that "fifty percent of the employees at the D have tested positive," yet "the employer is not notifying potentially exposed employees."

Representatives of the Cosmopolitan and the D Las Vegas said they have strict health and safety protocols in place to protect workers and guests. The Cosmopolitan said they worked with Nevada OSHA to investigate COVID-19 complaints and have received no citations.

Angela Ciciriello, a spokeswoman for the D Las Vegas, said many of the complaints came earlier in the year, when the industry was still working through safety protocols for guests and workers. "It was an evolving process, and I think we handled it the best we could," she said.

Nevada's OSHA affiliate also has not inspected Tesla Inc's mammoth battery factory near Reno, where workers complained of unsafe conditions between March and November. In a September report, county health authorities found that 117 COVID-19 cases since June were linked to the facility, which is a joint venture between Tesla and Panasonic Corp of North America. Tesla workers complained nine times to OSHA about pandemic-related issues, and Panasonic workers filed 10 complaints.

Tesla workers said in complaints that groups of four to five workers were required to remain in close proximity to maintain production, and that mask wearing wasn't being enforced.

"People are working and have COVID-19," read a Tesla worker's complaint from late July.

Tesla managers were aware of the illnesses and required employers to work anyway, the complaint alleged.

Nevada OSHA has not conducted an inspection of the facility. Teri Williams, a spokeswoman for Nevada OSHA, did not answer questions about the agency's handling of workers' complaints about the casinos and the battery factory. She said in a statement that the agency "has had to accomplish a tremendous amount of work with a small but dedicated staff" during the pandemic.

Tesla did not respond to requests for comment. Panasonic spokeswoman Dannea DeLisser said in a statement that the company investigated all complaints related to the factory and has "robust" health and safety protocols for its employees.

COMING TO WORK SICK

At Tyson Foods Inc, testing in late April revealed nearly 900 employees in Logansport, Indiana, had contracted COVID-19. Workers at the pork-processing facility had flagged problems weeks before the outbreak. Workers sent in 13 complaints to OSHA, detailing what one filing described as "packed" working conditions, a lack of protective gear and people with fevers continuing to show up for shifts.

Indiana OSHA never inspected the site for COVID-19 problems, and it closed the complaints after getting documents from the company in response to agency emails.

The state agency said in a statement that all but two of the complaints were anonymous, which made it difficult to follow up with workers. The agency said Tyson provided documents showing that the company worked to slow the spread of COVID-19.

Gary Harris, 62, a loading dock worker at the Tyson hog processing plant in Logansport, said workers were left in the dark for weeks about the extent of the virus. Most workers started raising alarms to management when they noticed how many people were absent.

"They just started coming up missing, and that grew the fear," Harris said.

Cass County - the rural stretch surrounding the Logansport facility - went from having few COVID-19 cases to recording among the highest number in the state by late April. Harris called the Tyson plant a "superspreader" and said there was friction between Tyson workers and others in the community, who blamed the workers for the spread.

Tyson did not answer questions from Reuters about its workers' OSHA complaints, but said it has invested $540 million since April in safety improvements across all its U.S. plants, including temperature checks, health screenings, random testing and plexiglass dividers for workstations. The company said it has worked closely with local health officials and OSHA, and has "consistently met or exceeded guidance" from health authorities.

'AVOIDABLE' OUTBREAK

In the two months after UPS driver Cabezola complained to OSHA on March 27, the virus quickly spread throughout the facility. Managers often failed to inform employees who had worked near infected colleagues, said Carlos Toledo, a Teamsters union representative for the Tucson facility.

"The outbreak we had was avoidable," said Mike Sanchez, a worker who was out sick for three months due to complications from the virus.

UPS spokesman O'Connor said the company consistently told workers to stay home if they were sick and that it has appropriately informed employees about coworkers' infections - assertions that were disputed by two UPS workers and two union officials.

Workers said UPS only started enforcing mask-wearing requirements and taking other precautions after taking criticisms from the union in local media and after a manager, Dan Amaro, died of COVID-19 in June. But those efforts have gotten more lax in recent months, said employee Nick Quijada. "They've definitely let it slide," he said.

Arizona OSHA officials have still not inspected or visited the UPS facility, and the agency told Reuters it has no plans to do so.

(Reporting by Chris Kirkham and Benjamin Lesser; Editing by Janet Roberts and Brian Thevenot)

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