How Trump Gutted OSHA and Workplace Safety Rules

The coronavirus had already begun tearing through the JBS Foods beef processing plant in Greeley, Colorado, when Kim Cordova wrote to the Occupational Safety and Health Administration in late March. Cordova, the president of UFCW Local 7, asked the federal agency to send inspectors to that plant, where 3,000 members of the union work, as well as to five other businesses where members of the local work. Many of the JBS workers, who cut, process, and package the meat from the newly slaughtered animals, had begun to fall sick with Covid-19. Yet JBS hadn’t provided the workers with masks and in some cases had advised specifically against wearing them, according to Cordova. The workers didn’t have enough room to distance themselves from their co-workers in the cafeteria, the locker rooms, or elsewhere around the plant. Although Cordova had been in direct communication with the management at JBS about the health hazards at the plant, the largest of its kind in the country, talks had recently hit a wall.

A few days later, Cordova received a call from OSHA letting her know that help was not on the way. “He said they didn’t have the staff and they weren’t doing any on-site visits. They just didn’t have any direction,” she recalled. “And I told them, people are going to die in this facility.”

Carolina Sanchez, left, is comforted by her son, Saul, during a protest — organized by the union representing employees at a JBS USA-owned Colorado meatpacking plant where six workers died from Covid-19 — outside the Occupational Safety and Health Administration offices in downtown Denver on Sept. 16, 2020. Sanchez’s husband was the facility’s first known Covid-19 death.

Cordova’s prediction proved true on April 7, when Saul Sanchez, a 78-year-old production worker became the first worker at JBS Greeley to die of Covid-19. Eventually five of his co-workers — Eduardo Conchas De La Cruz, Way Ler, Daniel Avila Loma, Tibursio Rivera Lopez, and Tin Aye — also died of the disease, as well as a seventh employee, whom JBS identified as “one of our corporate colleagues.” So far, at least 292 workers at the plant have been infected with the virus, and 51 workers have been hospitalized with Covid-19. Cordova said she knows of at least three family members of JBS Greeley workers who also died as a result of the outbreak.

On May 14, OSHA finally sent an inspector to the beef plant. But according to Cordova, the visit was brief. “They did a quick walk-through, more like a run-through,” she said. Although the union suggested that OSHA interview workers who had been sick with Covid-19, the inspectors declined to do so. “I understand that you can’t talk to the workers who are dead,” Cordova said. “But what about the ones who almost died?” And while the local offered interpreters so the inspectors could communicate with the workers, who speak dozens of languages, Cordova said the OSHA representatives declined.

Problems at the plant persisted after the visit, and the union filed a formal complaint with OSHA in July. On September 11, the agency issued a citation to JBS, finding that “the employer did not furnish employment or a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees.” For this “serious violation” of the law as well as one “other-than-serious” violation, OSHA issued a fine: $15,615. JBS, the biggest meat processing company in the world, with more than $51 billion in revenue last year, refused to pay the fine.

In an emailed statement, Cameron Bruett, head of corporate affairs for JBS USA, wrote “the OSHA citation is entirely without merit. It attempts to impose a standard that did not exist in March as we fought the pandemic with no guidance. When OSHA finally provided guidance in late April, one month after the beginning of the citation time period, our previously implemented preventive measures largely exceeded any of their recommendations.”

While more than 1,000 meatpacking, food-processing, and farming facilities have reported cases of Covid-19, resulting in 269 deaths as of October 15, according to Food and Environment Reporting Network, OSHA cites only two: JBS and Smithfield Foods. Smithfield, which operates a pork-processing plant in Sioux Falls, South Dakota, where at least 1,294 employees contracted the virus and four died of Covid-19, was hit with an even smaller fine than JBS: just $13,494, or about $10 for each worker at the plant who fell sick.

Related

Meat Industry Campaign Cash Flows to Officials Seeking to Quash Covid-19 Lawsuits

Smithfield, which is owned by the WH Group, the largest pork company in the world with more than $25 billion in revenue last year, also refused to pay the fine and is contesting its OSHA citation.

In an emailed statement, Keira Lombardo, executive vice president of corporate affairs and compliance at Smithfield, described the OSHA citation as “wholly without merit.” The statement also said that the company “took extraordinary measures on our own initiative to keep our employees as healthy and safe as possible so that we could fulfill our obligation to the American people to maintain the food supply. OSHA then used what we had done as a model for its April 26 guidance. We have incurred incremental expenses related to COVID-19 totaling more than $500 million to date.”

In an emailed response to questions about JBS, Department of Labor spokesperson Megan Sweeney said that the Department of Labor does not comment on pending litigation.

Employees of two departments at the Smithfield pork processing plant in Sioux Falls, S.D., report to work on May 4, 2020.

Lowest Point in History

OSHA was founded in 1971 to protect Americans from industrial accidents, poor ventilation, fires, and many other perils of the workplace. And while it has been hobbled by insufficient funding and staffing at various points over the years, the agency has reached its weakest state during the current pandemic, when the nation needs it most.

While more than 1,000 meatpacking, food-processing, and farming facilities have reported cases of Covid-19, OSHA gave citations to only two: JBS and Smithfield Foods.

Under Donald Trump, while a deadly disease has been spreading through America’s workplaces, OSHA has had fewer inspectors than at any point since the 1970s. The International Labor Organization recommends having one labor inspector for every 10,000 people; the U.S. now has one for every 83,207. Meanwhile, Trump has tried to slash OSHA’s funding in every one of his budget proposals (Congress has repeatedly restored it) and has never bothered to nominate a leader for the agency. Almost half the senior positions at OSHA remain vacant.

Without an assistant secretary of labor to guide the agency, the direction of OSHA has fallen to the Secretary of Labor, Eugene Scalia, the son of the late conservative Supreme Court justice Antonin Scalia. Eugene Scalia, an attorney who replaced Alexander Acosta after he stepped down amid the Jeffrey Epstein scandal, may be best known for attacking worker protections, including a rule that would have prevented 600,000 repetitive strain injuries each year.

During the pandemic, while masks have been essential in protecting workers from infection, the labor secretary has repeatedly appeared in public without a mask. Scalia and his wife, Trish, also attended and did not wear a mask at the superspreader event at the White House in September; she later tested positive for Covid-19.

I had a great conversation today with business leaders at the @DRC. We are reopening, and it’s impressive to see business leaders so focused on reopening safely. pic.twitter.com/vWYHQBDrvO

— Secretary Scalia – Archived (@SecGeneScalia) June 23, 2020

Asked about Scalia’s failure to use of face masks, the Department of Labor’s Sweeney wrote in an email to The Intercept, “Secretary Scalia follows the latest recommendations from health experts and medical professionals, including social distancing and wearing a mask where social distancing or other precautions are not able to be taken.” Sweeney also wrote that, “Since February 1, 2020, OSHA inspections alone have helped to ensure more than 634,000 workers are protected from COVID-19. The claim that OSHA is not enforcing its standards and the OSH Act with respect to COVID-19 is patently false.”

Fines for serious occupational violations doubled under the Obama administration, but they have fallen since Trump took office to the point of being meaningless. OSHA recently touted the fact that it has levied $1,222,156 in what it refers to as “proposed penalties” to 85 establishments for “coronavirus violations.” But that averages out to less than $15,000 each, a trivial amount for many large companies.

“OSHA was invented to ensure that workers are safe. And here you have this unprecedented crisis and OSHA has been absolutely silent,” said David Michaels, who led the agency during the Obama administration and is the longest serving assistant secretary of labor in OSHA’s history. “It’s beyond unfortunate that this country has faced a massive worker safety crisis when OSHA has no leadership and is weaker and less resourced than it has been in its history.”

According to Michaels, who is now a professor of Environmental and Occupational Health at the George Washington School of Public Health, OSHA could easily have levied sizable fines to the meat plants and other businesses that would actually deter the kinds of violations that are fueling the ongoing spread of the virus throughout American workplaces.

“The political leadership has made the decision in each one of these inspections that OSHA will issue at most one citation for violating the general duty clause,” said Michaels, referring to the section of the Occupational Safety and Health Act that requires employers to provide a workplace free from recognized hazards. “That’s a choice. They could issue multiple citations at the same worksite and they could classify those violations as willful, which allows them to multiply the size of the fine by 10.”

The administration made another decision that has devastated the government’s ability to respond to the pandemic. Early in 2017, Trump worked with congressional Republicans to repeal an Obama-era OSHA rule that had required employers to maintain records of work-related illnesses. Without that rule, the agency cannot issue a citation for failure to record a Covid-19 case if more than six months has passed since the case appeared. The result has been shoddy record-keeping that’s left the country without an accurate count of workers sickened and killed by Covid-19.

“Employers now know that the likelihood of OSHA catching them is extremely low,” Michaels said. “I have no doubt that some employers have decided to not record cases.”

David Michaels, assistant secretary of the Occupational Safety and Health Administration at the U.S. Department of Labor, in his office in Washington, D.C., on May 14, 2010.

Airborne Standard

Perhaps the deadliest choice OSHA has made under Trump was to kill a yearslong effort that was underway at the agency to require hospitals, nursing homes, and other medical workplaces to prepare for a pandemic exactly like the one we are now experiencing. Michaels became head of OSHA in December 2009, the year that the H1N1 pandemic started. And it was already clear that the health crisis sparked by that airborne flu virus, which killed 12,469 people in the U.S., would not be the last. So he and his staff began what would be six years of work creating a “standard” that would prepare workplaces to prevent the spread of airborne pathogens like the coronavirus.

The effort was modeled on the bloodborne standard the agency issued in 1991 during the HIV crisis, which brought about the use of safe sharps containers. Health care facilities that fail to use safe sharps containers and adhere to the other elements of the standard can be fined; as a result, the number of needlestick injuries to health care workers declined. The airborne standard, which was drafted by 2012, called for health care institutions to create plans to minimize workers’ risk from infectious airborne pathogens, a category that includes the coronavirus, and to stockpile necessary PPE to protect them in the case of an outbreak. Masks were to have been central to the preparations.

“We had long discussions with CDC about the need for N95s,” Michaels said.

The standard was written to apply to hospitals and other health care facilities but would have been “expandable” to other employers, according to Michaels. Had it passed, OSHA inspectors would have been able to fine hospitals and nursing homes that hadn’t prepared for an epidemic of an infectious airborne disease by stocking masks and other PPE well before the pandemic began. Although the airborne pathogen standard was put on the regulatory agenda in 2016 and was scheduled to be issued as a proposal the following year, the agency stopped work on it when Trump took office.

Perhaps the deadliest choice OSHA has made was to kill a yearslong effort to require medical workplaces to prepare for a pandemic exactly like the one we are now experiencing.

Health care institutions were woefully unprepared for the pandemic. More than 250,000 health care workers have been infected with the virus and at least 1,700 health care workers have died from Covid-19, according to estimates from National Nurses United. But no one knows the exact number, in part because of the poor tracking that’s followed OSHA’s loosening of the record-keeping requirements. Since January, more than 84,000 nursing home residents and staff have died, and hundreds of nursing homes have reported shortages of both PPE and staff.

In the absence of a permanent standard for airborne pathogens, labor groups have called on OSHA to issue an emergency temporary standard to protect workers from Covid-19. While Virginia enacted a temporary standard in July, after agriculture and meatpacking workers petitioned the governor, and several state OSHAs are working on their own enforceable standards that will help protect workers, the federal agency has continued to refuse to issue one. Instead, some of the guidance it has issued around the pandemic, such as its instruction to distance workers six feet apart “if feasible,” has been phrased as optional.

JBS Greeley Beef Plant welder Guillermo Rivera welds an individual frock hook at each meat processing station that includes new sheet-metal partitions at each station on April 23, 2020.

A Tiny Fraction

Thousands of health care workers have reported dangerous conditions to OSHA during the pandemic. Yet under Trump the agency has taken action on only a tiny fraction of those complaints. Overall, OSHA has investigated fewer than 3 percent of the 9,488 coronavirus-related complaints it has received as of October 18 during the pandemic. And the majority of those investigations did not lead to fines or citations. In her email, the Department of Labor’s Sweeney wrote that “every single complaint has been investigated.”

As of August 4, the agency had also received 1,744 complaints from whistleblowers who felt they were retaliated against at work because they raised coronavirus-related safety concerns or requested OSHA inspections, according to the National Employment Law Project — a significant increase in whistleblower complaints. Yet the agency investigated just 2 percent of those complaints. As with the complaints about coronavirus-related workplaces hazards, most of the whistleblower complaints were also dismissed or closed without investigation. An August report from the Department of Labor’s Inspector General found that OSHA cut the staff that handles these whistleblower complaints during the pandemic, even as the number of complaints was going up.

Meanwhile, entire sectors of the workforce that have been devastated by the coronavirus have not received any intervention from OSHA. More than 147,000 agricultural workers have been infected with the virus, according to Purdue University’s Food and Agriculture Vulnerability Index, yet OSHA has not cited or penalized a single farm. Nor has it issued any citations or penalties to any retail establishments, nonresidential schools, or restaurants. While Kim Cordova asked OSHA to visit workplaces owned by six major companies, the JBS plant in Greeley plant was the only one that was inspected.

JBS has made some changes to protect workers, including staggering start and break times to promote physical distancing, requiring the use of masks and face shields, erecting physical barriers, and “removing vulnerable populations from our facilities with full pay and benefits,” according to the statement from company, which says that it would have made these changes without intervention from OSHA.

Nevertheless, according to Cordova, conditions there remain perilous. She acknowledged that the company installed some physical barriers, but she said that there were no such barriers on the “kill” side of the plant, where the freshly slaughtered animals arrive to be processed, and that workers continue to be forced to work “elbow-to-elbow” in part because the line speed is too fast to allow them to spread out. The union confirmed that workers who were over 65 or had conditions that made them particularly susceptible to Covid-19 were allowed to stay home for a time, but said that they were asked to return to work in August. And while the company has begun screening employees on their way into work, a medical assistant hired by JBS recently reported that only about half the staff was actually being screened and that she was pressured to allow employees with concerning symptoms into the plant.

The union is now struggling to address these ongoing problems, but Cordova says she has no illusions that the federal workplace safety agency can help her do it. “It was OSHA’s job to protect people,” she said, “and they didn’t.”

Update: October 20, 2020
This article has been updated with comments from the Department of Labor that were received after publication.