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California OSHA Undercounts Workers’ COVID Illnesses, Deaths

The agency has been relying on self-reporting to determine the number of COVID cases that have been contracted in the workplace, resulting in severe undercounts that undermine the severity of workplace risk.

(TNS) — A year after the first COVID-19 case hit California, the state agency in charge of policing warehouses, offices, factories and other workplaces is woefully understaffed and significantly undercounting the number of employees who have fallen seriously ill or died as a result of the coronavirus.

California employers reported only 1,600 serious worker illnesses or deaths to the Division of Occupational Safety and Health, known as Cal/ OSHA, from the start of the pandemic through mid-December, according to data obtained by The Sacramento Bee through a Public Records Act request.

The agency's inspectors determined that only 779 of those serious or deadly infections were actually contracted in the workplace. That represents a tiny fraction of the 3.2 million people who have tested positive for the disease in California, and less than 2 percent of the more than 41,000 who have died from it.

Worker-safety advocates and elected officials say the absence of a reliable count of serious on-the-job infections by Cal/ OSHA creates significant consequences. The agency relies on employers to self-report workplace infections, and the incomplete statistics could put workers and their families at greater risk because the state has no clear picture of where COVID-19 workplace hot spots may have flared up.

"It's troubling; it absolutely is troubling," said state Sen. Jerry Hill, D- San Mateo, who co-authored legislation last year strengthening workers' compensation protections for employees who contract COVID-19 on the job.

Cal/ OSHA officials "have a responsibility to make sure ... those employee environments are safe," Hill said. "We want to guarantee the employer is doing everything possible. ... That's where Cal/ OSHA has to have accurate data."

While state inspectors have responded to thousands of complaints and levied fines against some workplaces that failed to report serious cases, a long-existing staffing shortage has hindered that process. There were 107 job openings posted for the department as of Friday.

Asked about overlooked infections, Cal/ OSHA spokesman Luke Brown said: "We cannot speculate about the number of cases that have not been reported to Cal/ OSHA."

The agency's database includes employer names, inspection numbers and dates that the businesses reported to the state serious illnesses — defined by Cal/ OSHA as cases that resulted in deaths or hospitalization. It is the most detailed official glimpse into how the coronavirus has seriously harmed employees in California.

But it's far from a complete portrait. The database identifies only businesses that have volunteered information to the state. Workplace researchers, health experts and lawmakers all agree the data is likely missing swaths of essential workers who were seriously sickened at work.

"Obviously, that is way under the experience that has been reported daily about the huge numbers of serious illnesses and deaths among vulnerable communities who are people who have not been able to shelter at home," said Laura Stock, director of UC Berkeley's Labor Occupational Health Program.

Taken as a whole, the Cal/ OSHA database creates an improbable portrait of significant COVID-19 cases in the workplace. Only four serious, confirmed illnesses have been recorded at poultry processing plants — an industry that, in reality, has been a well-known hot spot for COVID-19. Just 77 serious cases have been tallied across all of California's agriculture, meat and poultry sectors.

Meanwhile, the California attorney general's office in Sacramento has 17 cases recorded.

According to Cal/ OSHA's data, Sacramento County had 51 confirmed workplace infections. That's second only to the 220 cases reported in Los Angeles County — one of the nationwide epicenters for COVID-19. More than 16,000 Angelenos have died and more than 1 million have contracted the diseases, according to Los Angeles County health officials.

"If you're not paying attention, and documenting where and why people are getting sick and dying, (the virus) doesn't just stay in the workplace," said Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health. "It goes back to families. It goes back to whole communities."

Since the pandemic began, Cal/ OSHA has levied some $2.7 million in fines on more than 100 employers that have violated rules related to COVID-19, from improper safety planning and physical distancing to missing plexiglass dividers. Some employers have been fined $5,000 for failing to report illnesses and deaths to the very database the state uses to monitor where there are workplace-related hospitalizations or deaths.

The lopsided reporting of the most serious suspected cases, deaths and major illnesses, and a de facto honor system for companies to report problems, are the latest in a line of failures at the state's long-struggling worker safety department, critics said.

"It's a major, major problem," said Mitch Steiger, a legislative advocate for the California Labor Federation, which represents 1,200 unions and 2.1 million workers across the state. "And under COVID-19, there is every indication that this problem has gotten worse."

Employers ranging from grocers to government bureaucracies are required by law to report each workplace COVID-19 infection that results in an employee's hospitalization or death. But unlike a traditional workplace injury — caused by someone falling down or being struck by equipment, for example — it can be difficult to prove an employee got sick at work.

Uncontrolled community spread makes it easier for employers to argue workers were infected at a grocery store or restaurant and avoid Cal/ OSHA reporting. Hill's legislation, SB 1159, creates a "presumption" designed to make it easier for sickened employees to receive workers' comp payments.

Separate rules under AB 685 mandate that employers report workplace outbreaks. As of Monday, the California Department of Public Health, which says it will make the outbreak information available online, had not done so.

In a review of death certificate data, researchers from UC San Francisco recently found that working-age adults have experienced a 22 percent increase in mortality during the pandemic. The findings, which have not yet been peer-reviewed, found significant increases in deaths among essential workers in agriculture, transportation and manufacturing.

"If indeed these workers are essential, we must be swift and decisive in enacting measures that will treat their lives as such," the authors concluded.

Yet those same industries have minimal representation in the Cal/ OSHA hospitalization and death data, despite the state's use of strict reporting requirements for serious illness and injury. "Employers must immediately report fatalities and serious injuries or illnesses that occur in the place of employment, or in connection with employment," the rules say.

Attorney Hollie Rutkowski of the Compensation Law Center, a Sacramento law firm that represents injured workers, said she was dismayed to hear about Cal/ OSHA's data on serious workplace infection.

"You'd think they'd be the major player to monitor cases (in) workplaces," Rutkowski said. " OSHA is supposed to monitor places that have outbreaks."

The Department of Industrial Relations, which houses Cal/ OSHA, declined The Bee's request for an interview for this story. In an emailed response to questions, spokesman Brown acknowledged the challenges the department has been up against during the pandemic.

But, he said, the serious workplace illness and death data "does not reflect the entire picture of Cal/ OSHA's COVID-19 enforcement efforts."

Cal/ OSHA has opened 1,992 COVID-19 related inspections in the past year, Brown said. Nearly a quarter were for the healthcare sector, 15 percent were in agriculture, 13 percent in manufacturing and 12 percent in retail.

Is Becerra's Office Really a Virus Hot Spot?

Unsurprisingly, nearly half of the reported serious worker illnesses in the Cal/ OSHA database stem from healthcare facilities including hospitals and long-term care centers. Another 10 percent stem from law enforcement, such as sheriff's offices in Riverside, Fresno and Alameda counties and employees of the Department of Corrections and Rehabilitation.

Yet the state's data is so incomplete that a chain of car dealerships in greater Sacramento turns up as one of the premier hot spots for serious workplace COVID-19 cases.

A total of eight serious illnesses linked to the workplace were recorded at the Future Ford and Future Nissan dealerships in Roseville and Sacramento, along with another case at a Future dealership in Clovis. Executives with parent company Future Automotive Group didn't respond to requests for comment.

Also high on the Cal/ OSHA list are the California Department of Justice offices in Sacramento, where 17 cases were reported. The department is led by Attorney General Xavier Becerra, who has been nominated to run the U.S. Department of Health and Human Services, putting Becerra on the front lines of the Biden administration's response to the pandemic.

A spokeswoman for Becerra said the AG's office reported cases that likely included infections that actually occurred outside the workplace "out of an abundance of caution." The spokeswoman said the 17 cases weren't all serious, despite them showing up on the state's serious illness and death database.

On the other hand, well-publicized major outbreaks barely make a ripple on Cal/ OSHA's list — if they show up at all.

Last May, a frozen-foods manufacturer in Tulare County, Ruiz Foods, scaled back production after 174 employees were infected with the coronavirus, a story that made headlines in the San Joaquin Valley.

It was unclear whether any of the workers became seriously ill. Ruiz Foods' name isn't listed among the employers on Cal/ OSHA's list, which is limited to serious cases of COVID-19. Officials with Ruiz declined to comment for this story.

At the same time, poultry processor Foster Farms is listed as having six serious workplace COVID-19 infections in Cal/ OSHA's records, even though more than 600 workers have been sickened at the company's plants in California.

At one plant alone — the Foster chicken plant in Livingston — more than 400 workers have become ill, according to a lawsuit filed in December by the United Farm Workers. The lawsuit says nine workers have died of COVID-19 and accused the company of ignoring social-distancing protocols and failing to provide workers with masks. Foster called the lawsuit "without merit."

Separately, about 200 cases have been reported at a Foster plant in Fresno, according to the Fresno Bee. At least four have died.

Ira Brill, vice president of communications for Foster Farms, said workers have indeed fallen ill and died at their chicken processing plants, but blamed community spread. Brill disputed Cal/ OSHA's database, however, which showed the company had reported only 10 serious illnesses or deaths last year, six of which were tied to the job. He said they had reported at least 21 deaths and two hospitalizations to date to Cal/ OSHA, the bulk of which he estimated occurred before Dec. 15.

Brill said Foster Farms had not reported COVID-19 related illnesses and deaths prior to September because it was unclear to them whether an illness was considered a workplace accident. That changed when their Livingston plant was shut down and the state clarified the rules, Brill said.

"Once the issue of, did they have to be reported, was resolved, we fully filled them in," he said. "So I don't get why the database wouldn't say 21. It would have been prior to September when they could have said there were deaths that haven't been reported."

So far Foster hasn't been hit with fines or other disciplinary measures, according to Cal/ OSHA records, although investigations often take months to complete.

Farm labor leaders said they've been disappointed in Cal/ OSHA's response to the pandemic. Case in point: a major outbreak last year at Primex Farms, a pistachio processing plant in Kern County, where dozens of workers were infected.

Cal/ OSHA investigated and slapped the company with multiple fines, including a $5,000 penalty for failing to report two cases in which workers were admitted to a hospital with a "COVID-19-related illness."

But Armando Elenes, secretary-treasurer at the United Farm Workers, said the state wasn't particularly aggressive and seemed to rely heavily on organizations such as the UFW for information.

"You have to provide things on a silver platter," he said. "I'm not sure if it's a resource issue or what, but it feels like an uphill battle." Workers told him that the company staged a "dog and pony show" for Cal/ OSHA inspectors. Primex officials didn't respond to requests for comment for this story.

Cal/ OSHA fined the company $27,500 — a figure that Elenes dismissed as "peanuts." The agency also fined two of Primex's labor contractors $11,250 each — H&R Labor Contracting and Jacobo Farm Services. Another Primex labor contractor, United Staffing Associates, was fined $27,500.

COVID-19 Creates 'A System That's Buckling'

Employers who are accustomed to reporting serious injuries to the state, including government agencies and hospital chains, have continued to do so, the data shows. But the records are also revealing in how much appears to be undercounted or missing.

Grocery store workers in California have only been hospitalized or killed 14 times during the pandemic because of workplace infections, according to the state's data. New and used car dealers in the state, by comparison, reported 17 serious illnesses or deaths.

About 77 people who harvest crops or process meat and poultry were hospitalized or killed.

But those and other industries that are widely believed to be contributing to the crisis are likely operating under the radar, said Stephen Knight, executive director of Worksafe, an employee-rights advocacy group.

"We have a system that's buckling under the pressure of a 100-year event," Knight said, referring to the cascade of challenges with the state regulator group and swaths of workers who either do not know their rights or are discouraged from exercising them. The under-reporting is shocking, given the scope of hospitalizations and deaths in the state, he said.

"It has mixed up a deeply problematic picture, a broken picture of what's happening in our state right now," he said. "We can't properly respond to this pandemic or prepare for the next pandemic without that information."

"The main thing that Cal/ OSHA needs is more inspectors," said Steiger, with the California Labor Federation.

Steiger estimated that employers reported only about half of serious workplace injuries or deaths before the pandemic. That percentage has likely plummeted as the pandemic has affected every sector of the economy. Gaps in the data, he said, are troubling because a lack of reporting goes hand in hand with subpar worker protections, lackluster benefits and dangerous outbreaks that spread among employees and across a community.

"These all tend to come together in one big batch," Steiger said. "And that's where the problems really get out of hand before anyone even knows that they're happening."

Stricter Coronavirus Rules, Then Lawsuits

At the same time, when Cal/ OSHA does crackdown on employers, it's often met with resistance. On Nov. 30, the agency implemented emergency rules that, among other things, require employers to exclude from the workplace all employees "who had COVID-19 exposure." Employers also must arrange for on-the-job COVID-19 tests for any employees who might have been exposed. Advocates said it was a move in the right direction.

In response, the agency was hit with two lawsuits — one by the California Farm Bureau Federation and other farm groups, the other by a collection of business groups such as the National Retail Federation.

Both lawsuits say the new regulations create enormous burdens on small businesses.

Among the business plaintiffs is Relles Florist, a well-known flower shop in midtown Sacramento. The lawsuit says Relles, where an employee tested positive over the summer, could suffer "devastating" losses if another worker becomes infected and droves of workers have to be sent home.

The suit says owner Jim Relles "is keenly aware that, despite all of his best efforts, a future outbreak is a very real possibility. He cannot control what his employees and customers do when they are outside of his store."

Short-Staffing Leads to Honor System

For its part, Cal/ OSHA has struggled for years with staff turnover and hiring process problems.

The department reported 84 vacancies, mostly at district offices, as of Sept. 30, 2019, just a few months before the pandemic. About 460 across the entire department remained "dedicated" to workplace safety. "Ensuring Cal/ OSHA is adequately staffed is a top priority," officials wrote in a recent federal report.

That number jumped to more than 130 vacancies by the middle of last year, the Los Angeles Times reported.

Gov. Gavin Newsom said the pandemic had put "unprecedented strain" on the department. In his proposed budget released last month, Newsom pledged an additional $14.4 million to bring on 70 new workplace safety inspectors. The positions would be added by mid-year but only after the department "meets its hiring goals."

Brown, the Cal/ OSHA spokesman, said the agency has made improvements in hiring and filled 32 enforcement vacancies since the fall. Seven more are in the final stages, and another 25 are in the pipeline.

As its staffing problems continue and pandemic pressures increase, the agency has increasingly relied on employers reporting their illnesses voluntarily.

Last July, the office manager at Sacramento accounting firm Stroub Thompson Noble was stricken with COVID-19 while at home. She unwittingly brought the disease into the office and infected her boss, Paul Stroub. His symptoms were mild, but the manager died.

While Stroub was undergoing testing, a Sacramento County health worker urged him to make a report to Cal/ OSHA. The recommendation made him feel anxious about potential consequences for the firm.

"I was scared," Stroub said in an interview. "What would happen to me?"

But he contacted the agency anyway, and about a week later, Cal/ OSHA staged a surprise inspection at his office. A second surprise inspection soon followed.

Stroub was pleased with what he considers a quick response from a heavily-burdened agency, but also wonders about all the employers who didn't report.

"I don't know how Cal/ OSHA would know about COVID cases unless someone self-reported," Stroub said.

The Fresno Bee's Manuela Tobias contributed to this report. (c)2021 The Sacramento Bee (Sacramento, Calif.) Distributed by Tribune Content Agency, LLC.

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