When COVID-19 hit North Carolina in 2020, complaints about the safety of workers flooded the state agency charged with their protection. Yet, state Department of Labor officials didn’t have enforceable standards to widely issue citations and conduct inspections and then-Labor Commissioner Cherie Berry determined that no new standards for COVID were needed.
More than 1,526 COVID-related complaints were found valid in North Carolina last year, according to state records. Twenty-six people died from COVID exposure on the job; six of them worked for employers that had workplace safety complaints prior to and/or after their deaths, according to a state Labor Department review of data conducted at Policy Watch’s request.
Many warning signs preceded the workplace deaths. Yet state officials rarely conducted workplace inspections related to COVID complaints — so far, there have been just four.
Matthew Johnson, a professor at Duke University’s Sanford School of Public Policy, said given the volume of complaints, there’s reason to believe the number of actual work-related COVID deaths is much higher, especially since employers responsible to report these fatalities sometimes conclude that the cause of death couldn’t be pinned down to hazards at the workplace.
Johnson said a lack of enforceable standards is to blame. He said the state Occupational Safety and Health Division can’t cite workplaces for directly exposing employees to COVID because there are no regulations that would trigger onsite inspections for this reason.
Johnson said his research found that “the typical OSHA inspection can lead to a meaningful reduction in workers’ injuries and illnesses.”
Employers are obligated to report all workplace fatalities, including those due to COVID where it is believed that the person contracted the virus at work.
Poultry processing facility complaints draw little response
On May 22, 2020, workers at a Tyson Foods poultry-processing plant in Monroe, in Union County, lodged two separate Occupational Safety and Health Act complaints with the state.
One said that hundreds of employees who had tested positive for COVID continued to work. Another alleged the plant did not provide sanitary conditions: “The work area is not cleaned or sanitized and management will not provide cleaning supplies.”
These complaints were found valid by the state Labor Department, which then sent letters to Tyson, evaluated its responses and closed out the complaints, as the responses were deemed satisfactory, according to DOL communications director Jennifer Haigwood, which manages the Occupational Safety and Health Division.
Within two weeks, on June 7, a 48-year-old Latinx woman who worked at the Tyson plant in Monroe died after contracting COVID, according to the department’s review of workplace fatalities statewide.
Labor Department inspectors determined her death was related to her work, but took no further enforcement action or even issued a citation.
In just weeks, another complaint filed on July 1 stated that the Tyson plant officials reinstated an employee point system at the plant at the Monroe location. Under that system, workers can be fired for a certain number of deductions. According to the complaint, Tyson had threatened to deduct points from workers if they called in sick.
Tyson also allegedly failed to disclose the areas where workers who tested positive worked.
The department marked the complaint as valid, but did not immediately inspect the Tyson plant. Records show the state conducted one inspection of the Tyson plant in Monroe, but not until November.
Even after the state’s November inspection, workers continued to complain about Tyson’s alleged mistreatment.
As recently as late January 2021, workers were still calling the OSH Division about potential exposure to COVID at the plant.
A Tyson’s spokesperson could not be reached for comment on the safety measures at the plant before and after the death and complaints.
A record of inaction
Rather than enforcing federal OSHA law directly, North Carolina is one of 22 states that has its own plan approved by the federal government under the premise that the state program is as effective.
Despite, however, being one of the most populous states within the state-plan group and having received numerous complaints and reports of multiple deaths, North Carolina ranks last for the number of COVID-related citations issued and inspections conducted from February to late October of 2020. DOL conducted just one inspection from Feb. 1, 2020, to late October, according to a federal Office of Inspector General report. (Maine, which is also in the state-plan group and reported no violations, wasn’t included in the report.)
Haigwood said the department has, to date, conducted a total of four COVID-related inspections.
A federal audit of OSHA national and state offices found agency responses across the nation inadequate. “Increased complaints and reduced and remote inspections leave U.S. workers’ safety at increased risk,” the audit read.
The report pointed out that the remote inspections enabled hazards to “go unidentified or unabated longer” exposing employees to more risks during the pandemic.
State plan officials knew about the lack of enforceable federal standards, so some took action. Virginia passed emergency standards for COVID last summer and the National Employment Law Project identified 14 states that have adopted comprehensive COVID protections. North Carolina, however, is not one of them.
After the state OSH division received the COVID-19 complaints, officials typically wrote to company workplace management and asked them to conduct their own investigation to address these issues.
The state typically doesn’t inspect the facilities following a COVID-related complaint.
Clermont Ripley, a staff attorney at North Carolina Justice Center who works with labor rights groups that helped workers file these complaints, characterized such letters as ineffective. [Note: The Justice Center is the parent organization of NC Policy Watch.]
Communications between the state Department of Labor and the management of Mountaire Farms of North Carolina show the agency only asked the employer to investigate their own safety conditions following a complaint. The letter said the COVID hazard was not covered by an OSHA standard and didn’t seem to meet the criteria for a broader prohibition on exposing workers to any life-threatening risks, known as the General Duty Clause citation.
Ripley said the department ignored workers who filed OSHA complaints. “[The state said] ‘Here’s some guidance, and we are not going to make sure that you are complying with it, but here’s some guidance and there are no consequences’,” Ripley said.
Advocates, experts call for change
The lack of state and federal occupational safety and health enforcement didn’t surprise David Michaels, who was the longest-serving federal OSHA administrator from 2009 through 2017. Michaels is now a professor at the George Washington University School of Public Health.
Michaels said that the North Carolina OSH Division, like federal OSHA, had no standards requiring employers to protect workers from airborne infectious diseases, including distancing and providing masks.
He said the General Duty Clause can be invoked for overall negligence and workplace hazards, but it’s rarely used. Under the clause, OSHA enforcement agencies can treat any employer that fails to keep its workers safe from hazards and physical harm as noncompliant and subject to citations.
Workers’ rights advocacy groups urged former state Labor Commissioner Berry to adopt new COVID standards. In a letter denying the group’s petition, Berry wrote that she was concerned about legal challenges if the state adopted more regulatory actions, citing the required burden of proof on the agency’s part.
Michaels said it’s the employer’s job to ensure workplace safety, but OSHA needs to issue citations and assist employers to create a safe environment.
“This is a crisis for which OSHA was invented,” Michaels said. But he doesn’t think OSHA delivered.
“The failure of the Trump administration and North Carolina OSHA under Cherie Berry is tragic, and the county paid for that with the lives of many workers,” Michaels said.
Johnson sounded a similar note, saying state officials are stymied in the absence of an OSHA standard for COVID-19. He said top officials at the state and federal level could have pushed for enforceable standards and allocated more resources.
President Biden issued an executive order in January urging federal and state OSHA to adopt emergency standards for COVID-19 by March 15.
Michaels and Ripley predicted that federal OSHA will implement enforceable standards.
Michaels said the new standards should increase the number of inspections, report exposures, and issue (and widely publicize) citations.
The adoption of new emergency COVID standards will press the state labor department to include changes it once turned down.
Haigwood said in the email that DOL will review federal OSHA standards and notify the federal government “of our intentions in North Carolina within 15 days of their adoption date.”
The new state Labor Commissioner Josh Dobson, elected in November, has vowed to protect workers’ safety but has not adopted any new emergency COVID standards for the state either.
“In 2021, we will continue working toward our core mission by concentrating our education, training and compliance resources on high hazard industries, while also working with employers and employees on best practices for reducing the risk of COVID-19 in the workplace,” Dobson said in the statement about the workplace fatality report in January.
Several advocacy groups have sued DOL in Wake County Superior Court and asked federal OSHA to take over the state’s enforcement before North Carolina modifies its rules.
The plaintiffs included the Episcopal Farmworker Ministry, North Carolina State AFL-CIO, Western North Carolina Workers’ Center, North Carolina State Conference of the NAACP, NC Raise Up/Fight for $15 and a Union, and The Hispanic Liaison.
“North Carolina OSH has abdicated its responsibility; it’s telling workers they are on their own,” Michaels said. “I hope that will change.”