OSHA hasn’t investigated all deaths at meat plants
Some factories with COVID-19 fatalities not inspected by safety agency.
Normally, a workplace death in the United States is met with a swift and thorough response.
By law, employers must report a death within eight hours to the U.S. Occupational Health and Safety Administration. An inspector from OSHA typically arrives within a day to interview workers, review the site of the incident and determine whether the death resulted from unsafe conditions.
For workers in the meatpacking industry during the COVID-19 pandemic, however, the system of swift reporting and next-day inspections that should protect them has broken down.
At least 239 meatpacking workers have died and 45,000 have contracted the coronavirus since the start of the pandemic, according to tracking by the Midwest Center for Investigative Reporting. But companies reported less than half that number of deaths to OSHA, a joint investigation by USA TODAY and the Midwest Center found. Experts say that’s in large part because the agency weakened reporting requirements during the pandemic.
Even fewer deaths triggered the kind of robust investigation OSHA typically
“The agency failed.” Debbie Berkowitz
Former senior policy adviser at OSHA and now director of the National Employment Law Project’s worker health and safety program
conducted before the pandemic. Worker advocates say that’s also a consequence of a hands-off approach from OSHA.
And it isn’t just how many died, but who. The U.S. meatpacking industry has long relied on vulnerable populations to fill its workforce: immigrants, refugees, people of color, and those who lack other job opportunities. During its last data release in July, the U.S. Centers for Disease Control and Prevention found that 87% of coronavirus cases in meatpacking plants occurred among racial or ethnic minorities.
Debbie Berkowitz, a former senior policy adviser at OSHA and now director of the National Employment Law Project’s worker health and safety program, says that many coronavirus deaths are going unreported and uninvestigated, letting employers off the hook for unsafe conditions.
“The agency failed. It failed,” she said. “I don’t know what else to say.”
The meatpacking industry and OSHA separately pushed back against those conclusions. Sarah Little, a spokesperson for the industry group North American Meat Institute, said not all COVID-19 deaths need to be reported.
“The fact that any employee con
tracts COVID-19 does not indicate the infection was related to their workplace,” Little said.
In an email, a spokesperson with the U.S. Department of Labor, which houses OSHA, said the “hands-off ” characterization of the agency was “patently false” and that the agency investigates every complaint it receives.
“OSHA has been clear that employers are and will continue to be responsible for providing a workplace free of known health and safety hazards,” the department said.
But evidence shows deaths are going unreported.
At a Seaboard Foods plant in Guymon, Oklahoma, 961 workers have tested positive for the virus and six have died from COVID-19, according to the company. The Department of Labor has not received any reports of deaths from the plant, a spokesperson said.
A Seaboard spokesperson said the company did not report the deaths because it determined they were not workrelated.
OSHA opened an inspection into the plant in July, but it was not related to COVID-19, according to Seaboard. A Labor Department spokesperson said the inspection resulted in Seaboard “abating” hazards. But no one from OSHA has actually visited the plant during the pandemic, said Martin Rosas, president of United Food and Commercial Workers Union Local 2. The agency has not issued any fines or citations.
Loren Sweatt, principal deputy assistant secretary of labor at OSHA, denied that such instances are proof of any systemic failings.
“By pulling isolated alleged incidents out of context from the thousands of inspections conducted by OSHA, these criticisms unfairly disparage the work of dedicated OSHA inspectors across the country,” Sweatt said.
Publicly available data, as well as input from half a dozen former OSHA officials, suggest the problem is more widespread.
The last time the federal government estimated the number of meatpacking workers who died from COVID-19 was in July, when the CDC said the number stood at 86. But reporters have scoured media reports, obtained government records and interviewed industry workers throughout the pandemic to tally up the 239 deaths.
That figure substantially outpaces OSHA’s response. In an email, the agency said it has received 77 reports totaling 90 fatalities from COVID-19 in meatpacking plants, accounting for less than 4 in 10 of the deaths noted by the Midwest Center. Similarly, of the 65 meatpacking plants where reporters found at least one worker died, OSHA has not inspected 26 to date.
“Inspection” is an official term OSHA uses to describe a process in which an employee typically visits a plant and conducts a wide-ranging inquiry into the circumstances of a complaint, injury or death. Such inspections show up publicly on its inspection database.
During the pandemic, OSHA is responding to some cases – including deaths – with “rapid response investigations,” a less robust process in which the agency asks companies about an incident by phone, email or fax. Often, it accepts the company’s response and closes the case. The agency does not publish the reports in its database.
OSHA says it has conducted 11 rapid response investigations of deaths at meatpacking plants to date. Even when added to the inspections, it means that nearly 1 of every 4 plants with known deaths have received no OSHA inspection or investigation.
Former agency officials say OSHA had staffing problems before COVID-19. Inspectors are now even more swamped, tasked with handling coronavirus on top of normal caseloads. Epidemiological experts normally available to sort out tricky infectious disease scenarios are preoccupied elsewhere.
As a result, worker unions and advocates say even when OSHA does get involved, the results have been poor. OSHA now conducts some inspections virtually, with many coming a week or more after the death occurred. A Department of Labor spokesperson said OSHA has conducted 10 virtual inspections following worker deaths.
Workers have noticed the difference. In 2019, OSHA issued a $180,000 fine to Noah’s Ark, a beef processing plant in Hastings, Nebraska, after gaseous ammonia severely burned an employee. But when the coronavirus struck, sickening dozens of workers and leaving one dead, the outcome was different.
According to a federal lawsuit filed by three former Noah’s Ark employees represented by the ACLU, at least two workers contacted OSHA in August to file complaints about the plant. Their complaints alleged a lack of distancing, that the company wasn’t replacing soiled masks and that sick workers continued to report to the plant.
OSHA didn’t inspect the plant until September, and its investigation remains open. Without any changes, the ACLU escalated by filing a federal lawsuit. Mike Helzer, the plant manager, disputed the allegations.
The workers are asking the court to do what OSHA has not: require basic protections against the spread of coronavirus.
“We’ve talked to workers at a lot of different plants who feel like they have nobody whose job it is to advocate for their safety, outside of themselves and their unions,” said Spencer Amdur, a staff attorney with the ACLU’s Immigrants’ Rights Project.
Experts note OSHA has cited just five meatpacking plants for COVID-19 violations, totaling $69,000 in fines.
Asked about the figures, the agency said it has received 13,477 COVID-19 complaints across all industries since Feb. 1, and of those, 273 have led to citations and a total of $3.6 million in fines.
But those watching meatpacking plants, now notorious for their potential to be superspreader environments, said the five locations cited weren’t enough to prompt the entire industry to provide the safest workplaces possible.
“It is sort of arbitrary,” Berkowitz said. “When the exact same conditions exist in so many other meatpacking and poultry plants where workers died.”
Employers decide
Experts say the tug-of-war between companies and OSHA over reporting deaths and illnesses predates the pandemic.
The agency’s legal reporting requirements at times conflict. One says that when the circumstances of an employee’s death or illness are unclear, companies can evaluate and decide whether it must be reported to OSHA. But another rule says that in the instance of a heart attack, employers must report the incident to OSHA and let the agency decide if it is work-related.
Clyde Payne, a former area director for OSHA’s regional office in Jackson, Mississippi, said historically, decisions often came down to how aggressively OSHA wielded its authority. He told employers that if any fatality occurred at their worksite, they had to report it. If they didn’t, they risked being cited for a failure to report.
Payne and other experts say policies OSHA instituted last year to clarify the rules for reporting COVID-19 incidents swung too far in the other direction.
In April, OSHA released a policy that said only health care settings would
have to report COVID-19 deaths, except in rare circumstances in other industries. After receiving pushback, the agency restored reporting requirements in May for most businesses. But, it explicitly empowered employers to decide what was workplace related.
Keira Lombardo, chief administrative officer for Smithfield Foods, said that was no different than OSHA’s prior approach.
“OSHA requirements and standards include a decision tree and guidance with multiple scenarios ... to assist with making determinations,” she said.
Others see it differently, saying the May notice telegraphed that the agency would be unlikely to cite companies for failing to report a COVID-19 death.
Adam Finkel, a clinical professor of environmental health sciences at the University of Michigan and a former OSHA official, said the agency should have required reporting rather than letting employers decide.
“This is a recipe for missing most of the cases,” he said.
In September, OSHA again updated its policies to say employers had to report COVID-19 hospitalizations only if they occurred within 24 hours of workplace exposures, and deaths within 30 days of exposure.
Experts said that created an almost impossibly high bar with COVID-19 because it can be difficult to pinpoint exposure without contact tracing. Symptom onset often comes days after exposure, and hospitalization and death can occur weeks, if not months, later.
John Newquist, a safety consultant who worked for OSHA for nearly three decades, said after the September memo, the “fear is gone” from employers.
The consequences have played out on the ground.
At a JBS plant in Marshalltown, Iowa, the League of United Latin Americans Citizens filed a complaint with Iowa OSHA on April 1, on behalf of workers who said there was a lack of distancing at the plant. In response, the agency sent a letter to JBS containing the allegations, which the company denied.
Around that time, employee Jose Andrade-Garcia began experiencing shortness of breath. On April 17, he was hospitalized and put on a ventilator. He spent the last month of his life unresponsive before his death on May 15.
JBS did not report Andrade-Garcia’s death to Iowa OSHA. Asked why the agency did not cite the company for failure to report, Mary Montgomery, a spokeswoman for the Iowa Department of Labor, said employers don’t have to report COVID-19 cases if they can’t determine whether they were related to work.
Iowa OSHA did open an inspection on May 21, six days after Andrade-Garcia’s death and one day after his daughter, Maria Andrade, shared the family’s experience with the Des Moines Register.
Montgomery confirmed that media reports, not JBS’ recording of a death, spurred Iowa OSHA’s inspection.
“Even though an employee of JBS died from COVID-19, that in itself should not and did not impact the inspection process,” Montgomery said.
The agency closed the inspection in June without issuing a citation. The agency evaluated “JBS’ due diligence to protect employees from occupational COVID exposure” and found it in compliance with federal guidelines, Montgomery said.
Andrade said Iowa OSHA never contacted her about the circumstances of her father’s illness and death.
USA TODAY and the Midwest Center found more than two dozen meatpacking plants where workers died but OSHA did not conduct an inspection. To date, OSHA has fined just a single plant for failure to report a COVID-19 death.
Inadequate inspections
Critics of OSHA say the agency’s failings go beyond reporting requirements.
In April, OSHA and the CDC issued workplace safety recommendations to protect employees at meatpacking plants. But experts say the agencies undermined the effort by making their recommendations voluntary and filled with loopholes. The instructions urged 6 feet of distance “when possible” and modifying work lines to spread workers out “if feasible.”
Mark Lauritsen, director of food processing, meatpacking and manufacturing for the UFCW union, said OSHA should have required employers to spread workers out, provide proper protection and relax attendance policies to ensure safety.
“If the system was working properly, OSHA would have issued an emergency standard,” Lauritsen said, “so that everybody in this country, meatpacking and other employers alike, would all know, ‘Here are the minimums I have to do to make the workers safe from coronavirus and COVID-19.’”
In May, OSHA issued a separate instruction that said for industries outside of health care, agency field directors “must maximize” the use of remote inspections.
“That never existed,” prior to COVID-19, Berkowitz said of remote inspections. “It’s invented.”
Those on the ground said they saw the quality of inspections change.
At a Maid-Rite processing facility in northeast Pennsylvania, workers filed a complaint with OSHA in May claiming an “imminent danger” in their workplace, a top priority that can lead to immediate inspection and correction.
But that didn’t happen. At first, OSHA sent the company a letter. Then it did a virtual inspection, though the inspector testified during a court hearing that she didn’t actually see the plant.
When OSHA finally did perform an in-person inspection almost two months later, the agency gave Maid-Rite advance notice, which workers said allowed the company to temporarily improve conditions to pass muster. The danger returned afterward, they said.
Employees later filed a federal lawsuit against OSHA, asking a court to compel the agency to resolve the hazards alleged in their complaint.
Asked during a hearing why OSHA took the unusual step of giving the plant advance notice of its visit, inspector Shannon Warner testified she and her supervisors had done a hazard analysis.
“OSHA has a right to protect their employees also,” Warner said. “I was going into a worksite with potential COVID-19 exposure.”
“By pulling isolated alleged incidents out of context from the thousands of inspections conducted by OSHA, these criticisms unfairly disparage the work of dedicated OSHA inspectors across the country.” Loren Sweatt Principal deputy assistant secretary of labor at OSHA
What now?
Many critics of OSHA have their eyes on the calendar. Union officials said they believe the administration of President-elect Joseph Biden will offer a chance at a reset. They expect a more aggressive OSHA.
Lauritsen, with the UFCW, said that even though he feels his union has successfully worked with employers to institute safeguards without OSHA, additional in-person inspections would offer backup.
Others are more pessimistic. Much of the damage is done they say; hundreds of workers have died.
Earlier in the pandemic, when meatpacking plants were the primary drivers of coronavirus in many rural communities, it was easier to determine that positive cases were connected to a plant. Now that the virus is so widespread, experts say, it’s impossible to separate the signal from the noise.