DOL watchdog: OSHA ‘did not sufficiently protect’ workers from COVID-19 pandemic risks

The federal agency tasked with ensuring workplace safety failed to “sufficiently” protect workers during the COVID-19 pandemic, a government watchdog announced Wednesday.

The U.S. Department of Labor’s Office of Inspector General analyzed the Occupational Health and Safety Administration’s actions during the pandemic’s first year — which saw major outbreaks at workplaces, including meatpacking plants — and concluded the agency did not do enough. 

“We determined OSHA’s enforcement activities did not sufficiently protect workers from COVID-19 health hazards,” the report reads. “As a result, there is a heightened risk that workers suffered unnecessary exposure to the virus.”

The report identified three main problems with the agency’s enforcement:

In its response, OSHA said it agreed more information on COVID-19 cases was needed, but it largely stood by its regulatory process.

The report doesn’t explicitly mention meatpacking plants, but much of the criticism of OSHA’s handling of the pandemic revolved around those facilities. The agency entered the pandemic with its fewest number of inspectors in decades. At the same time, the number of workplaces it has to oversee has increased.

[Read more: ‘They think workers are like dogs.’ How pork plant execs sacrificed safety for profits.]

Previous inspector general reports have faulted OSHA for its lax enforcement. 

One found the agency often relied on “virtual inspections,” meaning its staff never visited facilities in person to find potential issues. The report said virtual inspections could lead to more illnesses and deaths. 

Some workplaces weren’t inspected in a timely manner. At the end of 2020, the pandemic’s first year, 65 plants had publicly been identified as being linked to a worker death; the agency had not inspected 40% of those plants, USA TODAY and Investigate Midwest found.

Another inspector general report faulted OSHA and the U.S. Department of Agriculture, which has food safety inspectors stationed in most large meatpacking plants, for not collaborating to ensure worker safety. 

Since the pandemic’s start, more than 80,000 workers tested positive for the virus and more than 400 died, according to figures obtained by a Congressional subcommittee and Investigate Midwest tracking.

The latest inspector general report found three main issues with OSHA’s enforcement:

1) The agency failed to always cite workplaces for not recording deaths, injuries and illnesses, which employers are required to do. Not citing workplaces hampered future enforcement efforts, the report said, because past citations are used to help determine follow-up inspections. 

The inspector general’s office sampled 41 workplaces that had COVID-19 deaths. The agency failed to cite six, or 15%, for not recording the death. It also didn’t record why it didn’t cite those workplaces.

OSHA said it was complying with its policy that allows agency managers discretion in citing employers.

The six workplaces are not named in the report, but one example of a workplace with deaths and no fine is Triumph Foods, a meatpacking plant in Missouri. An OSHA inspector found the company failed to protect its workers, resulting in about 600 infections and four deaths. But OSHA assessed no penalties. The inspection report includes no information on why the plant wasn’t cited. OSHA declined to explain its reasoning at the time to Investigate Midwest.

One reason for the lax enforcement might have been the lack of an agency standard specifically related to infectious diseases such as COVID-19. The agency would have needed to cite employers under the “general duty” clause, a catch-all rule saying employers need to provide a workplace free of known hazards. But citations brought under that clause require a high burden of proof and are hard to sustain if an employer objects, former OSHA officials have told USA TODAY and Investigate Midwest.

That squares with another finding from the inspector general: 52% of OSHA inspectors said in a survey it was harder to issue citations related to COVID-19 than ones not related to the virus during the pandemic.

2) OSHA does not know the entirety of workplaces’ COVID-19 infection rates because it doesn’t require workplaces to report all cases, the inspector general’s office found. Without knowledge of infections, employees couldn’t take measures to protect themselves, the office said.

The office said OSHA should learn from state agencies, such as the New Mexico Environment Department. That agency required all employers to report all COVID-19 cases they learned about among their employees, regardless of whether the virus was contracted at the workplace. This was crucial to timely reducing additional worker exposure to the virus, the office said.

For instance, Triumph Foods’ sister plant, Oklahoma’s Seaboard Foods, failed to report COVID-19 cases to OSHA. The company acknowledged more than 1,000 cases among its workforce to the news media, but it reported only three respiratory illnesses to the agency. This summer, OSHA cited the plant for failing to report illnesses and injuries, although the citation doesn’t mention COVID-19.

OSHA told the inspector general’s office it agreed with the finding but it faced tough realities.

“The need for better information about the spread of COVID-19, especially earlier in the pandemic, has been a persistent issue for government and public health authorities,” the agency said. “Fixing this issue, however, will require significant regulatory changes and investment.”

At least for meatpacking plants, information on infections by workplace was not tracked by the government in any consistent way. The problem was so acute that high-level USDA officials at one point looked to Investigate Midwest’s tracking of COVID-19 cases, according to emails.

3) OSHA finished some of its enforcement actions without ensuring employers took steps to protect workers, the inspector general’s office said. 

Out of the inspections the office sampled, 20%, or 13 of 66, were closed without receiving information from employers demonstrating they’d addressed the identified issues. Without this information, the office said, “there is a risk (inspectors) make less informed decisions, leaving open the possibility that hazards will go uncorrected and furthering workers safety risks.”

The office said this information was even more important given the agency often relied on remote inspections. According to the office’s survey, 26% of inspectors said remote inspections didn’t allow them to “effectively help safeguard workers” compared to on-site inspections.

The office recommended OSHA implement a tool to track if it is receiving all the information it requested from employers, but the agency said such a tool would not positively impact the effectiveness of inspections.

OSHA added the inspector general’s office failed to show the potential hazards at the 13 workplaces weren’t mitigated.

The DOL’s office of inspector general surveyed 710 OSHA inspectors to evaluate their experiences during the COVID-19 pandemic. The following graphs from its report illustrate the responses of the 235 who answered the survey.

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_{Top image: Washington, DC – Frances Perkins Building. photo by DOL}