Normally, a workplace death in the United States is met with a swift and thorough response.
By law, employers must report a death within eight hours to the U.S. Occupational Health and Safety Administration. An inspector from OSHA typically arrives within a day to interview workers, review the site of the incident and determine whether the death resulted from unsafe conditions.
For workers in the meatpacking industry during the COVID-19 pandemic, however, the system of swift reporting and next-day inspections that should protect them has broken down.
At least 239 meatpacking workers have died and 45,000 have contracted the coronavirus since the start of the pandemic, according to tracking by the Midwest Center for Investigative Reporting. But companies reported less than half that number of deaths to OSHA, a joint investigation by USA TODAY and the Midwest Center found. Experts say that's in large part because the agency weakened reporting requirements during the pandemic.
Even fewer deaths triggered the kind of robust investigation OSHA typically conducted before the pandemic. Worker advocates say that's also a consequence of a hands-off approach from OSHA.
Deaths at meatpacking plants
And it isn’t just how many died, but who. The U.S. meatpacking industry has long relied on vulnerable populations to fill its workforce: immigrants, refugees, people of color, and those who lack other employment opportunities. During its last data release in July, the U.S. Centers for Disease Control and Prevention found that 87% of coronavirus cases in meatpacking plants occurred among racial or ethnic minorities.
Debbie Berkowitz, a former senior policy adviser at OSHA and now director of the National Employment Law Project’s worker health and safety program, says that many coronavirus deaths are going unreported and uninvestigated, letting employers off the hook for unsafe conditions.
“The agency failed. It failed,” Berkowitz said. “I don’t know what else to say.”
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The meatpacking industry and OSHA separately pushed back against those conclusions. Sarah Little, a spokesperson for the industry group North American Meat Institute, said not all COVID-19 deaths need to be reported.
“The fact that any employee contracts COVID-19 does not indicate the infection was related to their workplace,” Little said.
In an email, a spokesperson with the U.S. Department of Labor, which houses OSHA, said the “hands-off” characterization of the agency was “patently false” and that the agency investigates every complaint it receives.
“OSHA has been clear that employers are and will continue to be responsible for providing a workplace free of known health and safety hazards,” the department said.
But evidence shows deaths are going unreported.
At a Seaboard Foods plant in Guymon, Oklahoma, 961 workers have tested positive for the virus and six have died from COVID-19, according to the company. The Department of Labor has not received any reports of deaths from the plant, a spokesperson said.
A Seaboard spokesperson said the company did not report the deaths because it determined they were not work-related.
OSHA opened an inspection into the plant in July, but it was not related to COVID-19, according to Seaboard. A Labor Department spokesperson said the inspection resulted in Seaboard “abating” hazards. But no one from OSHA has actually visited the plant during the pandemic, said Martin Rosas, president of United Food and Commercial Workers Union Local 2. The agency has not issued any fines or citations.
Loren Sweatt, principal deputy assistant secretary of labor at OSHA, denied that such instances are proof of any systemic failings.
“By pulling isolated alleged incidents out of context from the thousands of inspections conducted by OSHA, these criticisms unfairly disparage the work of dedicated OSHA inspectors across the country,” Sweatt said.
Publicly available data, as well as input from half a dozen former OSHA officials, suggest the problem is more widespread.
The last time the federal government estimated the number of meatpacking workers who died from COVID-19 was in July, when the CDC said the number stood at 86. But reporters have scoured media reports, obtained government records and interviewed industry workers throughout the pandemic to tally up the 239 deaths.
That figure substantially outpaces OSHA’s response. In an email, the agency said it has received 77 reports totaling 90 fatalities from COVID-19 in meatpacking plants, accounting for less than 4 in 10 of the deaths noted by the Midwest Center. Similarly, of the 65 meatpacking plants where reporters found at least one worker died, OSHA has not inspected 26 to date.
“Inspection” is an official term OSHA uses to describe a robust process in which an employee typically visits a plant in person and conducts a wide-ranging inquiry into the circumstances of a complaint, injury or death. Such inspections show up publicly on the agency’s inspection database.
During the pandemic, OSHA is responding to some cases – including deaths – with “rapid response investigations,” a less robust process in which the agency asks companies about an incident by phone, email or fax. Often, it accepts the company’s response and closes the case. The agency does not publish the reports in its database.
OSHA says it has conducted 11 rapid response investigations of deaths at meatpacking plants to date. Even when added to the inspections, it means that nearly 1 of every 4 plants with known deaths have received no OSHA inspection or investigation.
Former agency officials say OSHA already had staffing problems before COVID-19. Inspectors are now even more swamped, tasked with handling coronavirus on top of their normal caseloads of unrelated worker injury and deaths. Epidemiological experts normally available to them to sort out tricky infectious disease scenarios are preoccupied elsewhere.
As a result, worker unions and advocates say even when OSHA does get involved, the results have been poor. Gone are the days of rapid next-day inspections of fatalities. Instead, OSHA now conducts some inspections virtually, with many coming a week or more after the death occurred. A Department of Labor spokesperson said OSHA has conducted 10 virtual inspections following worker deaths.
Workers have noticed the difference. In 2019, OSHA issued a $180,000 fine to Noah’s Ark, a beef processing plant in Hastings, Nebraska, after gaseous ammonia severely burned an employee. But when the coronavirus struck this spring, sickening dozens of workers and leaving one dead, the outcome was different.
According to a federal lawsuit filed by three former Noah's Ark employees represented by the ACLU, at least two workers contacted OSHA in August to file complaints about the plant. Their complaints alleged a lack of distancing, that the company wasn't replacing soiled masks and that sick workers continued to report to the plant.
OSHA didn’t inspect the plant until September, and its investigation remains open. The agency has not fined or cited the plant. Without any changes, the ACLU escalated by filing a federal lawsuit. Mike Helzer, the plant manager, disputed the allegations in the lawsuit.
The workers are asking the court to do what OSHA has not – require basic protections against the spread of coronavirus.
“We’ve talked to workers at a lot of different plants who feel like they have nobody whose job it is to advocate for their safety, outside of themselves and their unions,” said Spencer Amdur, a staff attorney with the ACLU’s Immigrants’ Rights Project. “In meatpacking especially, OSHA has been so unwilling to take meaningful action.”
Experts point out that OSHA has cited just five meatpacking plants for COVID-19 violations, totaling $69,000 in fines.
Asked about the figures, the agency said it has received 13,477 COVID-19 complaints across all industries since Feb. 1, and of those, 273 have led to citations and a total of $3.6 million in fines.
But those watching meatpacking plants, now notorious for their potential to be superspreader environments, said the five locations cited weren’t enough to prompt the entire industry to provide the safest workplaces possible.
“It is sort of arbitrary,” Berkowitz said. “When the exact same conditions exist in so many other meatpacking and poultry plants where workers died.”
Experts say the tug-of-war between companies and OSHA over reporting deaths and illnesses predates the pandemic.
The agency’s legal reporting requirements at times conflict. One says that when the circumstances of an employee’s death or illness are unclear, companies can evaluate and decide whether or not it must be reported to OSHA. But another rule says that in the instance of a heart attack, employers must report the incident to OSHA and let the agency decide if it is work-related.
Clyde Payne, a former area director for OSHA’s regional office in Jackson, Mississippi, said historically, decisions often came down to how aggressively OSHA wielded its authority. He told employers that if any fatality occurred at their worksite, they had to report it. If they didn’t, they risked being cited for a failure to report.
“It was really my job to make the decision that it is or it isn’t work related,” Payne said.
Payne and other experts say that policies OSHA instituted last year to clarify the rules for reporting COVID-19 incidents swung too far in the other direction.
In April, OSHA first released a policy that said only health care settings would have to report COVID-19 deaths, except in rare circumstances in other industries. After receiving pushback, the agency restored reporting requirements in May for most businesses. But, it explicitly empowered employers to decide what was workplace related.
Keira Lombardo, chief administrative officer for Smithfield Foods, said that was no different than OSHA’s prior approach.
“OSHA requirements and standards include a decision tree and guidance with multiple scenarios ... to assist with making determinations,” Lombardo said.
Others see it differently, saying the May notice telegraphed that the agency would be unlikely to cite companies for failing to report a COVID-19 death.
Adam Finkel, a clinical professor of environmental health sciences at the University of Michigan and a former OSHA official, said the agency should have required reporting rather than letting employers decide what to report.
"This is a recipe for missing most of the cases,” he said.
In September, OSHA again updated its policies to say employers had to report COVID-19 hospitalizations only if they occurred within 24 hours of workplace exposures, and deaths within 30 days of exposure.
Experts said that created an almost impossibly high bar with COVID-19 because it can be difficult to pinpoint exposure without contact tracing. Symptom onset often comes days after exposure, and hospitalization and death can occur weeks, if not months, later.
John Newquist, a safety consultant who worked for OSHA for nearly three decades, said after the September memo, the "fear is gone" from employers.
The consequences have played out on the ground.
At a JBS plant in Marshalltown, Iowa, the League of United Latin Americans Citizens filed a complaint with Iowa OSHA on April 1, on behalf of workers who said there was a lack of distancing at the plant. In response, the agency sent a letter to JBS containing the allegations, which the company denied.
Around that time, employee Jose Andrade-Garcia began experiencing shortness of breath. On April 17, he was hospitalized and put on a ventilator. He spent the last month of his life unresponsive before his death on May 15.
JBS did not report Andrade-Garcia’s death to Iowa OSHA. Asked why the agency did not cite the company for failure to report, Mary Montgomery, a spokeswoman for the Iowa Department of Labor, said employers don’t have to report COVID-19 cases if they can’t determine whether they were related to work.
Iowa OSHA did open an inspection on May 21, six days after Andrade-Garcia’s death and one day after his daughter, Maria Andrade, shared the family’s experience with the Des Moines Register.
Montgomery confirmed that media reports, not JBS’ recording of a death, spurred Iowa OSHA’s inspection.
“Even though an employee of JBS died from COVID-19, that in itself should not and did not impact the inspection process,” Montgomery said.
The agency closed the inspection in June without issuing a citation. The agency evaluated “JBS’ due diligence to protect employees from occupational COVID exposure” and found it in compliance with federal guidelines, Montgomery said.
Andrade said Iowa OSHA never contacted her about the circumstances of her father’s illness and death.
“OSHA had been in there and JBS had come back to OSHA stating that they were doing everything by the book,” Andrade said, “Which of course, it was questionable after what happened to Dad.”
USA TODAY and the Midwest Center found more than two dozen meatpacking plants where workers died but OSHA did not conduct an inspection. To date, OSHA has fined just a single plant – Quality Sausage in Dallas – for failure to report a COVID-19 death.
Companies don't log deaths
In addition to reporting hospitalizations and deaths to OSHA, the agency requires companies to record incidents needing care beyond first aid on a “300 log” kept on site.
Union officials say companies are leaving COVID-19 cases off those books, too.
Eric Reeder, president of the United Food and Commercial Workers Union Local 293 in Nebraska, said he cross-checked known worker deaths against logs in six plants. He found that 11 deaths known to his union were not listed.
“They’re not reporting on their logs,” Reeder said of the plants.
Five deaths were at a JBS plant in Grand Island, Nebraska, Reeder said. Three were at a pair of Smithfield facilities in Crete, also in Nebraska. Those facilities recorded outbreaks of more than 250 cases each this spring.
Asked about the apparent discrepancies, a JBS spokesperson replied only that the company follows “OSHA guidance and all applicable laws and regulations regarding the reporting of injuries and illnesses, including 300 logs.”
Lombardo, with Smithfield, said the company conducts a thorough inquiry for each case of COVID-19.
“We follow the OSHA standards and guidance while also ensuring that each case is fully reported to appropriate health agencies,” she said.
A U.S. Department of Labor spokesperson said OSHA initiated two fatality inspections in Crete in June, based on media reports. One death was determined to be of natural causes, and the other investigation remains open. The agency opened a third inspection of a “potential COVID-related fatality” based on a public notification, which also remains open.
Former OSHA officials said they believe companies are hiding in the ambiguities of the agency’s guidelines, and that it didn’t have to be the case. Berkowitz said the agency would have been better off saying nothing at all.
“You had OSHA saying, ‘We're going to give you the benefit of the doubt that this isn't work related,’” Berkowitz said. “It was just bending over backwards to say we're not going to come after you.”
Critics of OSHA say the agency’s failings go beyond reporting requirements.
In April, OSHA and the CDC issued workplace safety recommendations to protect employees at meatpacking plants. CDC teams had just investigated major outbreaks at a Smithfield plant in Sioux Falls, South Dakota, and a JBS plant in Greeley, Colorado, to develop best practices.
But experts say the agencies undermined the effort by making their recommendations voluntary and filled with loopholes. The instructions urged 6 feet of distance "when possible" and modifying work lines to spread workers out "if feasible."
Mark Lauritsen, director of food processing, meatpacking and manufacturing for the UFCW union, said OSHA should have required employers to spread workers out, provide proper protection and relax attendance policies to ensure safety.
“If the system was working properly, OSHA would have issued an emergency standard,” Lauritsen said, “so that everybody in this country, meatpacking and other employers alike, would all know, ‘Here are the minimums I have to do to make the workers safe from coronavirus and COVID-19.’”
In May, OSHA issued a separate instruction that said for industries outside of health care, agency field directors “must maximize” the use of remote inspections via video conferences, phone interviews, faxes and emails.
“That never existed,” prior to COVID-19, Berkowitz said of remote inspections. “It’s invented.”
Those on the ground said they saw the quality of inspections change.
At a Maid-Rite processing facility in northeast Pennsylvania, workers filed a complaint with OSHA in May claiming an “imminent danger” in their workplace, a top priority that can lead to immediate inspection and correction.
But that didn’t happen. At first, OSHA sent the company a letter. Then it did a virtual inspection, though the inspector testified during a court hearing that she didn’t actually see the plant.
When OSHA finally did perform an in-person inspection almost two months later, the agency gave Maid-Rite advance notice, which workers said allowed the company to temporarily improve conditions to pass muster. The danger returned afterward, they said.
Employees later filed a federal lawsuit against OSHA, asking a court to compel the agency to resolve the hazards alleged in their complaint.
Asked during a hearing why OSHA took the unusual step of giving the plant advance notice of its visit, inspector Shannon Warner testified she and her supervisors had done a hazard analysis.
“OSHA has a right to protect their employees also,” Warner said. “I was going into a worksite with potential COVID-19 exposure.”
For its part, the Department of Labor said OSHA by law can give up to 24 hours advance notice of a visit “when special precautions are necessary.” It added that OSHA investigates every allegation, including spending at least 1,200 employee hours inspecting the Sioux Falls and Greeley plants.
An OSHA field instructor and member of the American Federation of Government Employees, a federal workers union, told USA TODAY on the condition of anonymity that inspectors are in a “tough position.”
“They are safety and health professionals that want to keep the American worker safe no matter the cost,” the instructor said. “However, those same inspectors don't want to contract the virus and then in turn bring it home to their families."
Lack of citations
More than 10 months into the pandemic, many critics of OSHA say one of the clearest signs of the agency’s hands-off approach is the small number of COVID-19 citations and fines the agency has issued to meatpacking plants.
According to its website, the agency has cited just five: the JBS plant in Colorado and another in Green Bay, Wisconsin; a JBS subsidiary plant in Cactus, Texas; the Smithfield Foods plant in Sioux Falls; and Quality Sausage in Dallas.
The fines total $69,593, and each company is appealing.
“People are really not worried about getting cited," Newquist said. “They know OSHA is overwhelmed, so they call it in and the most likely case is, ‘Do you have a COVID program? Yes. Do you do this, this and this? Yes. OK, we’re going to close the case. Thank you very much.’”
Most of the citations OSHA issued came under the “general duty” clause, a catch-all rule that says employers are required to provide a workplace free from known hazards. OSHA officials tout the rule as proof the agency can hold employers to account even though its COVID-19 guidelines are largely perceived as voluntary.
Berkowitz noted the two most high profile general duty citations – of the Sioux Falls and Greeley plants – occurred in the runup to 2020 election. She believes they had more to do with politics than policy.
Payne, the former OSHA area director, added that general duty claims are difficult to sustain in court.
“It brings to the agency a higher burden of proof when you go to litigate the case,” Payne said.
And Amdur, with the ACLU, said the general duty citations present another problem. Because companies can challenge them, the citations can take months, or even years, to resolve. All along, dangerous conditions continue.
“OSHA’s doing it in a way that guarantees it won’t lead to any changes during the pandemic,” Amdur said. “They’re saying even if you tell us that people are inches apart, breathing on each other with no masks and no barriers, indoors for hours at a time, we’re still not going to take immediate action.”
Many critics of OSHA have their eyes on the calendar. Union officials said they believe the incoming administration of President-elect Joseph Biden will offer a chance at a reset. They expect a more aggressive OSHA.
Lauritsen, with the UFCW, said that even though he feels his union has successfully worked with employers to institute safeguards even without OSHA, additional in-person inspections would offer backup.
“The real value of an inspector is to bring those highly trained professional eyes into plants and say, 'Here's what you need to do,’” Lauritsen said. “And right now we don't have that.”
Others are more pessimistic. Much of the damage is done they say; hundreds of workers have died.
Earlier in the pandemic, when meatpacking plants were the primary drivers of coronavirus in many rural communities, it was easier to determine that positive cases were connected to a plant. Now that the virus is so widespread and crippling to rural communities across the country, experts say, it’s impossible to separate the signal from the noise.
"From the beginning, (OSHA) said they’re not going to investigate,” said Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health. “They basically reneged on their responsibility and mission throughout.”
Contributed: Tyler Jett, Des Moines Register
This story is a collaboration between USA TODAY and the Midwest Center for Investigative Reporting. The center is an independent, nonprofit newsroom based in Illinois offering investigative and enterprise coverage of agribusiness, Big Ag and related issues. Gannett funds a fellowship at the center for expanded coverage of agribusiness and its impact on communities.
This article originally appeared on USA TODAY: COVID-19 deaths not investigated by OSHA at meatpacking plants