Last week, the Occupational Safety and Health Administration fined Smithfield Foods for failing to protect workers at its Sioux Falls, South Dakota pork processing plant from coronavirus. The plant had been the site of one of the country’s worst COVID-19 hotspots in the country. Four workers died and more than 1,200 others were infected.
When Sandra Sibert clocked-in at the pork plant after the fine became public, she was curious to know what her colleagues thought of the long-awaited penalty.
“They said, ‘It seems like a joke,’” said Sibert, 47, who works in the ham-bone department and serves as a union shop steward. “Thirteen thousand dollars? That’s nothing for Smithfield.”
Indeed, the fine is nothing more than a rounding error ― budget dust ― for an operation of Smithfield’s size, whose parent company, China-based WH Group, had profits of nearly $1.4 billion last year.
Nonetheless, a Smithfield spokeswoman called the OSHA fine “wholly without merit,” and said the company plans to appeal.
The coronavirus pandemic has confronted OSHA with its biggest test since the agency was created in 1971. But workplace safety experts say that under the Trump administration’s leadership, the agency is shirking its oversight of employers and leaving workers to fend for themselves amid a health crisis that has killed roughly 200,000 Americans, many of whom contracted the virus at work.
“This is far and away the most significant worker safety crisis in OSHA’s history, and OSHA has failed to step up to the plate,” said David Michaels, who ran the agency during the Obama administration. “OSHA has failed to use really any of its powers to address it…. It’s hard to take OSHA seriously.”
The agency, part of the Labor Department, has declined to issue any temporary emergency standards to deal with the pandemic, despite pleas from experts like Michaels. Such standards would help OSHA crack down on dangerous employers. The guidance it has put out is essentially voluntary, with few legal ramifications for companies that disregard it.
Nor do employers need to worry much about an OSHA inspector banging on their doors. The agency has received 8,856 complaints related to coronavirus, according to Labor Department data through Sept. 15, but has opened only 184 workplace inspections as a result of them. That’s one inspection for every 48 complaints.
The announcement of several relatively tiny fines against employers has done little to quell the uproar over OSHA’s performance. In addition to citing Smithfield, last week the agency levied two fines against Brazil-based JBS, the largest meat producer in the world. The JBS plant in Greeley, Colorado, lost eight workers to COVID-19. The penalties amounted to just $15,615. Family members of one worker who died, Saul Sanchez, told CBS Denver they spent a greater sum on his funeral.
A Labor Department spokesperson said the agency has been working around the clock to protect workers, and that it’s using the rules that are already on the books to hold employers accountable. The inspections done during the pandemic have helped keep 605,000 workers safe, according to the agency. OSHA has issued 21 coronavirus-related citations so far.
“OSHA inspectors will not close a case if they have identified any potential citations,” the spokesperson said. “OSHA will continue to enforce the law and offer guidance to employers and employees to keep America’s workplaces safe.”
According to Mark Lauritsen, head of the food processing division at the United Food and Commercial Workers union, the minor fines send the message that even when inspections occur, no real consequences will result for deep-pocketed corporations that put workers at risk. Lauritsen’s union represents workers at both the Smithfield and JBS plants, and COVID-19 has claimed the lives of more than 120 meatpacking members nationwide since March.
The meager penalties are “not going to change the habits of anybody, and that’s the point of a fine from OSHA: To change habits,” said Lauritsen. “This is a further abdication of its responsibility.”
This is far and away the most significant worker safety crisis in OSHA’s history, and OSHA has failed.
David Michaels, former head of OSHA
OSHA struggles to fulfill its mission even in good times. At its current funding level, it would take 165 years for the agency to inspect every workplace under its jurisdiction even once, according to the AFL-CIO, the labor federation that advocates for its 55 member unions. Due to attrition under the Trump administration, OSHA’s roster of inspectors fell to its lowest level in decades at the start of this year ― just 862 to monitor the private sector throughout most of the country.
Experts say those shortcomings make it all the more important that the agency act aggressively and creatively with the resources it has ― something they haven’t seen it do six months into the pandemic.
“All these things they could be doing, they’re not,” said Peg Seminario, who served as head of the AFL-CIO’s safety and health department for nearly 30 years before retiring in 2019. “This is not a resource issue on COVID. They’re not using the basic tools that they have.”
It would be impossible for OSHA to send out an inspector to look at every workplace for which they receive a complaint, especially when the volume of hazards has exploded. And while initiating just 184 inspections based on complaints so far looks bad, Michaels, the former OSHA head, cautioned that the agency has no choice but to pick and choose where to use limited staff, and must still investigate hazards not involving coronavirus.
But Debbie Berkowitz, a former policy advisor at OSHA during the Obama years, said she’s troubled by how many of the agency’s investigations appear to be of the “phone and fax” variety. That’s when investigators ask a company to respond in writing to a complaint, rather than visit a worksite and poke around. Such cases are typically closed quickly without an on-the-ground inspection.
“OSHA is not doing what OSHA usually does, which is get a complaint, knock on the door and go in,” said Berkowitz, now a work safety expert at the Washington-based National Employment Law Project. “They’re not going onsite and talking to workers.”
That was the scenario that played out after Maria Martinez, a McDonald’s worker in Chicago, sent OSHA a complaint in July.
She and a co-worker got help from the Fight for $15, the union-backed campaign to improve working conditions in the fast-food industry, as they reported a host of alleged problems at their site. They said that management provided them with a single mask each day that they would quickly sweat through, and that they had been charged $5 apiece for additional masks. They said they worked on top of one another in the crowded kitchen, and employees’ temperatures weren’t always checked before their shifts.
In June, a Cook County judge had ruled that McDonald’s wasn’t enforcing its mask policies and training workers in line with Illinois’ social-distancing rules. The judge ordered the stores to adopt certain safety measures.
Martinez told HuffPost that her supervisor told her not to worry about the virus even though several of her colleagues had tested positive.
The workers asked OSHA for an immediate inspection. But documents show the agency categorized the complaint as “non-formal” ― a category unlikely to result in an inspector coming onsite. Instead, OSHA sent McDonald’s a letter asking it to address the claims. The company denied the allegations in a five-page letter laying out its policies and asserting that all workers were wearing masks and gloves and following social-distancing guidelines.
OSHA seemed satisfied. “With this information,” an official wrote in a followup letter to Martinez’s representative, “OSHA feels the case can be closed.”
McDonald’s said in a statement to HuffPost that “the safety of employees and customers at McDonald’s has been, and continues to be, a top priority. We are pleased that OSHA found in its review that these allegations are without merit, and as a result, closed the complaint.”
Getting inspections have proved difficult even at meatpacking plants, which have been home to some of the country’s biggest COVID-19 clusters. The UFCW estimated that more than 17,000 meatpacking workers have been infected by or exposed to the virus.
An April 13 OSHA memo prioritized inspections for “high” or “very-high” risk workplaces, which included nursing homes and health care facilities. Meat processing facilities were placed in the “medium” risk bucket, which meant that complaints “will not normally result in an on-site inspection.”
More than 130 employees at Smithfield’s pork plant in Crete, Nebraska, had tested positive for coronavirus by May 6. One worker’s daughter grew so concerned that she filed a complaint with OSHA on his behalf.
Workers dressed in crowded locker rooms and sat too close to one another in the cafeteria, she wrote in the May 27 complaint. Social-distancing wasn’t enforced during temperature checks, and workers across from one another along the conveyor belt had less than six feet between them.
“I don’t know that I had really high hopes or expectations filing the complaint, but I understand the importance of documenting things that happen,” said the daughter, who asked not to be named for fear management could retaliate against her dad. She provided HuffPost with a copy of the OSHA complaint and the notes she took from a call with an agency investigator.
According to her notes, the investigator told her that if the company had instituted safety rules for coronavirus, it was on the workers to follow them: “The employer can’t sit there and watch them all day.” The investigator said OSHA had been in contact with Smithfield and the company appeared to be following the Centers for Disease Control and Prevention guidelines.
The daughter said the investigator told her to advise her dad to wear a mask and keep his distance from other workers.
“I thought that a complaint was something serious ― that they would take it seriously,” she said. “It sounded like calling me back was something they needed to do to check off their list.”
OSHA records show that the Crete plant is the subject of two ongoing inspections opened three weeks after she filed her complaint. They are categorized as “fatality/catastrophe,” meaning a worker died or several were hospitalized ― situations OSHA regularly investigates. (In addition to the 184 inspections OSHA has begun based on complaints, it has opened 614 COVID-19 inspections due to fatalities or catastrophes, and another 79 based on referrals from local health departments and other sources.)
Keira Lombardo, a Smithfield spokesperson, told HuffPost in a statement that throughout the pandemic the company has had “two priorities, and two priorities only. First, keep our people healthy and safe. And, second, keep our nation fed.” She said the company spent $350 million in the second quarter on COVID-19 measures, including increased health benefits, pay boosts and providing protective equipment and physical barriers in plants.
“We have adopted a series of stringent and detailed processes, protocols and protective measures that follow, and [in] many cases exceed” the guidance from OSHA and the CDC, she said. “Industry facilities are not designed for social distancing; that is an incontrovertible, if not inconvenient, fact. And yet, we have adapted our facilities where possible, as fast as possible, to accommodate social distancing.”
People like Edgar Fields don’t see much use in filing complaints, even at meatpacking plants. Fields is president of the Southeast Council of the Retail, Wholesale and Department Store Union, which represents thousands of poultry processing workers at risk of contracting COVID-19. Early in the pandemic, Fields’ union lost three members to the disease who worked at a Tyson poultry plant in Camilla, Georgia.
In April, OSHA provided Fields’ union with a copy of a lengthy letter Tyson had sent the agency, detailing what the company was doing to prevent the spread of COVID-19. Tyson blamed the deaths on the virus’ prevalence outside its plant walls: “The evidence suggests that the deaths of our team members are the tragic result of the pandemic that has spread through the Southwest Georgia community where many of our team members live. … There simply is no objective evidence that our team members’ deaths were work-related.”
OSHA did not say whether the Camilla plant is the subject of an ongoing inspection. Fields said he would rather use his collective bargaining agreement and deal directly with employers like Tyson than get regulators involved.
“I’m not wasting my time with OSHA,” he said. “They don’t have any teeth. They don’t have the personnel. And the bottom line is they don’t want to go into these facilities and investigate. All they’re going to do is call up the company. And the company will say, ‘We’re going to fix it.’”
Of course, the vast majority of U.S. workers don’t have a union like Fields’ looking out for them.
I thought that a complaint was something serious — that they would take it seriously.
Daughter of a Smithfield Foods worker in Crete, Nebraska
Occupational health experts said several of the strategic decisions the Labor Department has made during the pandemic have been disconcerting.
A month into the national emergency, OSHA leaders announced that employers outside of the health care field generally would not have to report coronavirus cases to the agency. The rationale was that it would be too difficult to determine whether the transmission happened at work. But it meant that in most cases, employers wouldn’t even have to try to figure out how their workers got sick.
Marcy Goldstein-Gelb, co-director of the National Council for Occupational Safety and Health, said the policy gave up “critical information needed to prevent the spread” of the virus.
OSHA reversed the original guidance five weeks later under pressure from the AFL-CIO and others, and now requires employers to determine whether a transmission was work-related.
“They talk about tracing and tracking,” Goldstein-Gelb said. “Here was a golden opportunity to document what was happening in the workplace.”
Such moves are consistent with the Trump-era Labor Department. The agency seemed reluctant to come down hard on employers even before the pandemic began. Labor Secretary Eugene Scalia previously worked as a management-side attorney. Under Trump, the agency has rolled back workplace regulations and emphasized “compliance assistance” over tough enforcement.
Well-meaning employers certainly need guidance from OSHA as they navigate an extraordinary crisis and try to keep their workers safe. But the light regulatory touch has left companies with little to fret if their workers end up endangered.
Rather than put out new, emergency regulations that employers must follow, OSHA has put out a steady stream of voluntary guidance and tips that lack any legal force. The agency collaborated with the CDC on guidelines for the meatpacking industry, but they come with weak qualifiers, like the recommendation that workers space out at least six feet ”if feasible.”
Some jurisdictions, like Virginia, have pursued their own, stronger rules specific to the pandemic in order to limit the virus’ spread in workplaces. Virginia is one of 21 states, along with Puerto Rico, that handle workplace safety inspections themselves, through OSHA-approved state plans.
OSHA levied its fines against Smithfield and JBS based upon the ”general duty” clause, which states employers have to provide a workplace free from hazards likely to cause harm or death. Unlike most OSHA rules, the general duty clause is broadly worded; using it often invites lengthy legal fights from employers. OSHA could have cited more specific rules for coronavirus ― except, it hasn’t instituted any.
The Smithfield fine was the maximum allowed for a “serious” violation under the law, but OSHA still could have boosted the penalty, if it wanted to, by issuing separate fines for multiple failures or for every worker who got sick or died.
It also could have cited “willful” or “repeat” violations, which come with a higher price tag of $134,937 apiece. The agency can run up a tab when it really wants to: BP, for example, reached a $50.6 million penalty settlement with it stemming from a 2005 Texas refinery blast that killed 15 workers.
But so far, that kind of fear-inducing fine hasn’t materialized during the pandemic. In addition to the meatpacking fines, OSHA also issued citations against three hospitals in Louisiana and New Jersey last week, ranging from $9,639 to $28,070. The five fines totaled $80,312.
Two earlier COVID-related fines against nursing homes initially came to $40,482 and $6,506. The latter has been dropped to $3,904.
Despite the constraints that hamstring onsite inspections by OSHA, the agency has a less work-intensive way to save workers from infection and death: make a show of criticizing bad actors.
Matthew Johnson, a labor economist at Duke University, studied OSHA’s use of press releases to publicize notable fines against employers. He found that embarrassing a company in such a manner had the same impact as more than 200 inspections as far as encouraging other employers to follow safety guidelines. The Trump administration scaled back those press releases when it took over from the Obama administration.
“Overwhelming evidence paints a pretty clear picture that if OSHA was having more of a presence right now … you would probably be seeing fewer work-related problems,” Johnson said.
OSHA did issue press releases on its coronavirus-related fines. But for the most part, shaming employers doesn’t seem to be in the agency’s playbook these days. The news release announcing the fine against JBS went out after 7:00 p.m. ET on a Friday night, when it was likely to get less media attention. OSHA has not hosted press conferences on the recent fines.
“They should be cranking out citations in a very public way, and in a way that’s most impactful,” Michaels said.
Sibert, the Smithfield worker, wishes the fine against her company had come much sooner. OSHA has six months from the date of an alleged hazard to issue a citation, and often uses much of that time to build its case. But Sibert ― like former OSHA officials interviewed for this story ― said she believes the penalty would have had a greater impact if it came early in the crisis and sent a message to the rest of the industry.
The CDC studied how rapidly coronavirus tore through Smithfield’s Sioux Falls workforce, infecting an average of 67 workers per day at the peak of the outbreak. To protect her family, Sibert sequestered herself from her husband and their 7- and 9-year-old daughters each night, afraid she would bring the virus home. She ultimately did, testing positive in early April. She recovered and returned to work.
Sibert said she sent emails to the White House and the office of South Dakota Gov. Kristi Noem (R) expressing her concerns about the conditions at the plant, hoping someone would put pressure on management. But she said all those she dealt with ― from Smithfield to state leaders to regulators under the Trump administration ― seemed more concerned with the meat supply than with the workers on the processing lines.
“They could have saved lives,” she said.
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