Update: On September 10, OSHA issued its first fine to Smithfield Foods in Sioux Falls, South Dakota, for $13,494. Nearly 1,300 Smithfield employees tested positive for coronavirus, 43 workers were hospitalized, and four workers died between March 22 and June 16. On September, 11, OSHA said it would fine JBS USA more than $15,000 for failing to protect employees at its Greeley plant from COVID-19 after six workers died and nearly 300 were infected with the virus.

Many states are lifting stay-at-home restrictions and some workplaces are reopening after the coronavirus upended the country in March, but among food chain workers who have been laboring throughout the pandemic—in farm fields, grocery stores, and especially meatpacking plants—cases and deaths continue to rise.

Now, a growing number of labor advocates and legislators are pointing a finger at the Occupational Safety and Health Administration (OSHA).

Since COVID-19 emerged, the agency has resisted calls to create an enforceable coronavirus-specific standard. Instead, OSHA has merely issued voluntary guidance for employers. In response to worker complaints, in the majority of cases, it advises businesses of that guidance rather than carrying out routine inspections. And despite the scope of the now months-long tragedy, an agency spokesperson told Civil Eats it has so far issued only one citation related to the pandemic.

“The COVID-19 pandemic has resulted in the worst worker crisis in OSHA’s 50-year history. Nothing compares,” said representative Alma Adams (D-North Carolina) during a House hearing on May 28. “While guidance issued by the CDC can be useful, it is not binding. Only OSHA can enforce safe working conditions.”

Adams is one of more than 100 Democratic representatives who co-sponsored legislation, introduced by Bobby Scott (D-Virginia), that would direct OSHA to create an Emergency Temporary Standard (ETS) for workplace safety related to the coronavirus. The bill was included in the House version of the HEROES Act, which passed on May 15. But the legislation has stalled in the Senate, and if it does move forward, it’s still unclear which provisions will be included in a final version.

At the hearing, lawmakers’ questions and comments largely reflected party lines: Democrats demanded OSHA create an emergency standard and railed against its failure to protect workers, while Republicans praised the agency for issuing guidance they said would not overburden struggling businesses.

Meanwhile, in workplaces across the country, frontline food workers continue to be exposed to the coronavirus and to die from COVID-19: Last week, the United Food and Commercial Workers International Union released updated estimates suggesting that 225 of its members have died and more than 29,000 have been infected or exposed.

The American Federation of Labor and Congress of Industrial Organizations (AFLCIO) also sued OSHA after the agency did not respond to a petition asking for an ETS to protect workers. But a federal appeals court rejected the suit last week, on the grounds that OSHA has the authority to determine whether or not an ETS is necessary.

In workplaces across the country, frontline food workers continue to be exposed to the coronavirus and to die from COVID-19.

Meanwhile, Europe’s meatpacking workers have gotten sick at much lower rates, which is at least partially attributable to stricter worker protections and more significant government intervention.

For advocates, all of this prompts the question: When will the federal agency tasked with protecting workers start doing its job?

Handling Complaints

Various state laws began regulating safety in factories before the start of the 20th Century, but steel mills and mines remained notoriously dangerous, and momentum for federal health and safety protections grew over the years. In 1970, shortly after President Lyndon Johnson failed to pass a similar law, President Richard Nixon signed the legislation that created OSHA, for the first time giving the federal government the authority to set and enforce standards to protect workers on the job.

Each year, OSHA receives thousands of complaints from workers who observe or experience hazardous conditions. On April 3, one complaint asserted that a JBS beef plant in Grand Island, Nebraska, already had “a number” of positive cases of COVID-19 and was not implementing social distancing or other protective measures. By April 22, OSHA had marked the complaint as “closed,” without completing an inspection. During that same time period, a local news outlet reported that cases at the plant jumped from 10 to 237.

As of June 15, more than 31,000 meatpacking, food processing, and farmworkers had tested positive for COVID-19 and at least 101 have died. In meatpacking facilities especially, there have been numerous reports of companies including Tyson, Smithfield, and JBS implementing insufficient protective measures or implementing some only after outbreaks had occurred.

“We cannot lose sight of the fact that this is a tragedy largely inflicted on our nation’s essential workers . . . they are low-income and disproportionately people of color,” Representative Adams said during the House hearing.

Immigrants make up a large percentage of workers contracting COVID-19 on farms and at meatpacking plants. Statistics released at the end of 2019 found that Black and Latinx workers died on the job at higher rates than others in 2018. And the number of Black Americans killed at work increased 16 percent, from 530 to 615, the highest number since 1999.

Since the pandemic began, many workers have filed complaints with OSHA. Of the roughly 5,000 COVID-related complaints spanning all industries so far, 85 were related to the meat and poultry business, 93 were related to grocery stores, 124 were related to restaurants, and 18 were related to agriculture, according to OSHA. Those numbers do not include the additional 11,500 complaints across all industries submitted to state-level OSHA agencies. (Twenty-one states run their own OSHA offices. Under the law, those agencies have to meet the standards of the federal agency but can go beyond them.)

Advocates such as Deborah Berkowitz, the worker health and safety program director at the National Employment Law Project (NELP), say that there is a direct connection between the way OSHA is processing complaints and the high rates of COVID-19 infection among food workers.

During the House hearing, OSHA’s top administrator, Loren Sweatt (who was appointed to her position by the Trump administration in July 2017), explained that the agency conducts an investigation in response to most complaints. That entails advising the business of the complaint in a letter, and providing the guidance developed on how to protect workers from COVID-19. (Specific documents have been developed for meatpacking plants and farmworkers, in collaboration with the CDC.) Companies then have to report back on the protective measures they’ve implemented.

Loren Sweatt, OSHA Principal Deputy Assistant Secretary, testifies before a House Committee on protecting workers from COVID-19. (Photo by Rod Lamkey-Pool/Getty Images)

However, the guidance is not binding, and since most of these investigations don’t involve an inspection, Berkowitz said the agency is taking company executives at their word.

“What the Department of Labor is really saying is that we trust all employers to do the right thing, even in the absence of mandates,” she said. “There’s no better proof of the failure of this thinking than the tens of thousands of cases in meatpacking and poultry.”

In an emailed statement, a Department of Labor spokesperson told Civil Eats that OSHA investigators have completed 448 COVID-related inspections but did not specify how many of those were done within the food and agriculture industries. The spokesperson also noted that the agency has up to six months to complete an inspection and issue citations. (However, according to complaint records, the overwhelming majority of investigations have already been closed without citations.)

“OSHA is using all enforcement tools to respond to the coronavirus public health emergency. OSHA’s goal is to expeditiously remove workers from hazards, or eliminate hazards within the workplace. The agency’s current approach best achieves this goal. OSHA will continue to prioritize COVID-related inspections,” the spokesperson said. That statement runs contrary to worker experiences, the number of workers who have gotten sick and died, and the overall number of inspections that have been done compared to previous years.

During the House hearing, for example, legislators also asked questions about whether OSHA had the necessary workforce to properly respond to complaints. Sweatt reported that the agency was actively looking to fill 50 vacant inspector positions but that the level of understaffing hadn’t changed since 2017. She attributed the lack of progress to a competitive job market.

OSHA inspectors have conducted an average of 5,000 fewer inspections per year compared to the previous two presidential administrations.

A NELP report released in April found that in the past 45 years, OSHA has never before had such a low number of inspectors, and the number has decreased in each of the last two years, now totaling 862—70 fewer inspectors than the lowest level recorded in any administration since 1975. In addition, 42 percent of the agency’s top leadership positions remain open. And inspectors have conducted an average of 5,000 fewer inspections annually compared to the agencies during both the Obama and Bush administrations.

“It always fluctuates one year to another, a little up and down. But if you look at the three-year record since Trump is president compared to any three-year period in the last 20 years, it’s way down. It’s dire,” Berkowitz said. “I think it’s been a combination of incompetence and a very deliberate effort to slow-walk hiring.”

Setting a Standard

Developing a new federal workplace safety standard is a process that rarely happens—and takes years to complete when it does. In the wake of the HIV/AIDS epidemic, for example, OSHA worked on a new standard to protect workers from pathogens transmitted through the blood for more than five years, before publishing it in 1991.

After the H1N1 pandemic of 2009, OSHA began work on another standard that could be used to protect workers from infectious diseases transmitted in other ways, such as via respiratory droplets. After close to seven years of work on the standard, it was tabled by the agency in 2017, shortly after the Trump administration took over.

Because of the intensive nature of establishing a permanent standard, the law that created OSHA also gave the agency the authority to create a less comprehensive ETS “if employees are exposed to grave dangers from new hazards.” And labor groups say creating an ETS is the best way for OSHA to lay out enforceable requirements for businesses at this moment. The Democrats’ COVID Every Worker Protection Act of 2020 would also require the agency to issue an ETS within seven days of the law’s passage (and to issue a permanent infectious disease standard within two years).

During the hearing, Sweatt repeatedly said that an ETS was the wrong approach because information about COVID-19 is changing quickly and the agency needed to be able to update guidance as the situation changes. She also said it was unnecessary.

“OSHA quickly pivoted to focus intensely on giving employers and workers the guidance they need to work safely in this rapidly changing situation,” she told Congress. “OSHA will not use guidance as a substitute for enforcement. Rather, the agency has the tools to pursue both avenues.”

But Berkowitz said the numbers show they’re using enforcement very rarely. For example, the agency has only issued one COVID-related citation so far. Meanwhile, the CDC’s own data from 19 states shows outbreaks in 115 meatpacking plants have led to nearly 5,000 confirmed coronavirus cases. “OSHA still has an issue without an emergency temporary standard,” she said. “And without them enforcing the CDC guidance, there are no requirements out there for any employer to do anything.”

“Without OSHA enforcing the CDC guidance, there are no requirements out there for any employer to do anything.”

Some workers have turned to the courts instead. Through the Rural Community Workers Alliance, for instance, Axel Fuentes helps immigrant workers in rural Missouri report workplace safety breaches. Most cut meat at a Smithfield pork plant in Milan, Missouri, and Fuentes helped the workers file two OSHA complaints related to other working conditions, including a lack of bathroom breaks, in the past. Those complaints did not result in changes, so when workers at the plant became concerned about lack of protection from COVID-19, they took action elsewhere.

On April 2, 70 workers sent a letter to management outlining their concerns. When they felt those concerns were not adequately addressed, they filed a lawsuit against Smithfield, alleging a lack of PPE, shoulder-to-shoulder work, a lack of COVID testing, and policies that encouraged workers to come in sick.

In response to the lawsuit, Smithfield did make some changes at the plant, which it communicated to the court. The court then dismissed the lawsuit, primarily on the grounds that the company was already putting protections into place and that OSHA should handle the workers’ concerns.

Since then, Fuentes helped the workers file an OSHA complaint regarding other hazards, including crowding in locker rooms and the inability to socially distance because of the fast line speeds. (The USDA has also issued waivers to allow some poultry plants to increase line speeds during the pandemic.) In response, OSHA did conduct an on-site inspection of the plant—but Fuentes said it was insufficient. “In our complaint, we requested OSHA interview workers, but they didn’t,” he said, “and we don’t know what happened with the inspection.”

Only a handful of cases have been tied to the Milan plant so far, but Smithfield is not sharing numbers related to testing, and OSHA isn’t tracking workplace cases. According to the New York Times database, there have been 71 coronavirus cases in Milan’s Sullivan County, out of a population of 6,000. That’s the second highest rate of infection in the entire state, topped only by Saline County, home to an outbreak tied to a Cargill plant in Marshall.

Based on what he’s seen over the past several months in the tiny community, Fuentes laughed at the estimates and said the numbers had to be much higher.

At the House hearing, Representative Adams cited a few striking national statistics related to worker infections and deaths in meatpacking plants. “Given those numbers, would you say that your current strategy to ensure the safety of meat processing workers is working?” she asked. Sweatt declined to answer the question.