June 11, 2021 update: The Biden administration yesterday released a new rule on the worker protections required to keep employees safe from COVID-19, but it excludes food and farm workers from those protections.

Now, advocates for worker rights are hopeful as President Biden has named a new leader for the agency, Doug Parker, the former head of California’s state-level OSHA.

Cal/OSHA is known for having stronger standards than OSHA. And for food workers, Parker’s track record in California not only provides insights into how he might run OSHA, but it means he’ll bring with him the experience of managing worker protections in the country’s largest agricultural state.

OSHA’s structure as a federal agency is unique. States have the option of running their own agency, and OSHA only has jurisdiction over those states that opt not to do so. Currently, 21 states (plus four that only cover state employees), including California, run their own agencies. Their standards must meet minimum federal standards, but they can extend further.

Cal/OSHA’s approach to protecting workers in the food industry during the pandemic has differed from the federal agency’s in at least two ways. First, it issued an Emergency Temporary Standard for COVID-19 workplace protections. Second, the agency has proposed $1.4 million in fines to be paid by farms, meatpackers, supermarket chains, and food service operations. In comparison, OSHA has issued penalties of just over $145,000 to food and agriculture companies across all the 29 states for which it’s responsible.

However, enormous challenges await. “Trump really hollowed out the agency in a way that the Bush administration did not do,” said Debbie Berkowitz, the worker health and safety program director at the National Employment Law Project (NELP), who served as OSHA’s chief of staff during the Obama administration. Under Trump, OSHA had the smallest number of inspectors in its history, completed far fewer inspections, and left nearly half of its leadership positions vacant, including the position Parker will fill, which has been open since January 2017. Now, re-energizing the agency will depend on new leadership as well as on appropriations from Congress.

“Workers really deserve to have their rights enforced, but it’s a huge lift,” said Berkowitz.

Standards and Enforcement in California

Worksafe was one of several organizations that pushed Cal/OSHA to implement emergency rules in March 2019 to protect state workers from wildfire smoke. Those rules required farms to provide masks to farmworkers, for example, when air quality reached unhealthy levels. Parker’s tenure as chief of Cal/OSHA began in September 2019, and under his leadership, the agency extended those emergency rules.

Just six months later, COVID-19 struck. California’s food workers were hit hard by the pandemic, and the agency responded to that reality with a combination of enforcement and rulemaking.

Before the state set emergency rules, Cal/OSHA was more vigorously investigating and fining businesses that were failing to follow COVID-19 protection guidance than the federal agency. Since the beginning of the pandemic, Cal/OSHA has proposed a total of over $4.6 million in fines across all industries, compared to $4 million in initial penalties at the federal level.

In California, the proportion of those fines that were levied against employers in the food and agriculture industry was also significantly higher. That’s at least partially due to California’s outsize food industry, but not entirely. Cal/OSHA, for example, fined grocery stores a total of $181,000, including Ralph’s locations that had severe COVID-19 outbreaks with worker deaths. Outbreaks also occurred at grocery stores in states covered by OSHA, but the federal agency issued no citations against retail food stores.

Similarly, OSHA covers many states that had serious COVID-19 outbreaks at meatpacking plants, including Arkansas, Kansas, Illinois, and South Dakota, but its fines against food processors (including meatpackers) added up to about one-sixth of the total issued by Cal/OSHA.

“It is critical that employers evaluate the workplace and take proactive measures to prevent the transmission of COVID-19,” Parker said in a press release announcing $450,000 in fines levied in response to an outbreak at a food manufacturing plant where one employee died. He also reminded employers that they were required to report serious illnesses and deaths to the agency.

By contrast, the federal agency’s largest citation against a processor was a $15,600 fine levied against JBS USA, a company that generates $7 billion in annual sales, after hundreds of workers were infected, and at least six died, at one of its beef processing plants in Colorado.

The size of these fines matters, says Elizabeth Strater, director of strategic campaigns for the United Farm Workers (UFW), based in California. “A big piece of the puzzle is making sure that the consequences for employers that don’t follow the guidance are sizable. If you evaluate a fine and determine that the fine literally costs less than the protective equipment, well then you’ve got a pretty blunt tool to accomplish what you need to do,” she said.

Steering a Big, Understaffed Ship

In the past, UFW sued Cal/OSHA for not adequately enforcing regulations that require farms to provide farmworkers with shade, put in place after a series of heat-related deaths. As a result, union members now have a direct line to the agency to report violations, whether it’s employers breaking the shade rule, failing to provide masks during smoke conditions (a practice the state of California is unique in enforcing), or flouting COVID-19 guidelines.

Strater said Cal/OSHA suffers from “a lack of capacity that is so common it’s nearly universal in every state,” but she adds that Parker had previously acknowledged that fact. “There are not a lot of state agents who are . . . willing to go on record about how they wish they had stronger tools or are speaking vocally about the shortcomings in the framework behind the work that they do, and Doug Parker did that,” she said. In her view, while Cal/OSHA has demonstrated many limitations, it has shown more will to serve workers compared to the federal agency or other state agencies.

The Emergency Temporary Standard (ETS) that the agency put in place for COVID-19 in November 2020 is also an important factor. It requires employers to have a written prevention plan that includes PPE and testing. Many lawmakers and advocates urged OSHA to create a federal Emergency Temporary Standard (ETS) that would create enforceable rules to protect workers early in the pandemic, but the agency resisted the call, saying it had all the tools it needed to respond adequately and that the guidance it issued for various industries was sufficient.

Berkowitz said she believes Cal/OSHA’s ETS was significant in initiating a more effective pandemic response. On the flip side, in January 2021, a group of organizations that represent business owners sued Cal/OSHA over the ETS, on the grounds that it imposed costly, unnecessary regulations that would put struggling companies out of business and lead to job losses.

What’s Ahead?

In January, one of President Biden’s executive orders included several directives for OSHA, one of which was to “consider” whether an ETS for COVID-19 is necessary and if it was, to issue it by March 15. Many worker organizations expected the agency to respond quickly, and were angry when it appeared that the Department of Labor was slowing it down.

“The emergency is not over. Data show that COVID-19 risks in the workplace remain very real and very dangerous across the country, including nurses, bus drivers, meatpackers, farm workers, and so many more,” Anita Desikan, a research analyst at the Union of Concerned Scientists, wrote in a recent call to action. “There is no more time for delay.”

A Department of Labor spokesperson told Civil Eats that Labor Secretary Marty Walsh had determined that materials related to an ETS should be updated to reflect the latest science on the state of COVID-19 and that he had ordered a “rapid update” based on CDC analysis and up-to-date information on vaccinations and variants. On April 26, the department sent the standards to the Office of Management and Budget for review, and the new rules are expected to be published after about two weeks.

In the meantime, Walsh—whose background as a union leader has set advocates’ expectations high—also acted on other directives in Biden’s executive order. OSHA released an updated COVID-19 response plan and a new National Emphasis Program (NEP) that targets high-risk workplaces, including meat and poultry processing plants, grocery stores, and restaurants. In addition to increasing the number of safety inspections of those places, the NEP includes outreach through seminars, partnerships, and other methods to get information on updated safety rules and compliance to both employers and employee groups.

And in early April, President Biden proposed a 17 percent increase in funding for worker protection agencies, including OSHA, to increase staff, inspections, and investigations. Final spending decisions will be determined in Congress, but Berkowitz said that Biden’s OSHA has already made significant progress, even without the top position filled. Installing Parker, in her mind, would speed that up further.

For the people harvesting and preparing and selling the food we eat, those changes can’t come soon enough. “These are some of the most vulnerable workers in the country for a myriad of reasons,” Strater said. And while she thinks every agency could do more to protect them, she believes that California’s approach represents a step in the right direction. “I’ll tell you that Georgia and Florida farmworkers wish they had a Cal/OSHA,” she said.