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‘Pretty Disappointing’ California workplace safety agency’s response to COVID complaints: letters, not inspections
By Jackie Botts/CalMatters
newsroom@northcoastjournal.com seven days a week at two fast food restaurants and as a janitor, even as Oakland seemed to be grinding to a halt around her.
Then in late June, her life did, too.
By then two of her coworkers at a combo Taco Bell and Kentucky Fried Chicken joint stopped showing up to work — Aguilar said a manager told her they were on vacation — after one woman stayed home with a fever. Aguilar, 54, had spent hours rolling burritos within arm’s length of her.
First Aguilar felt weak, dizzy and tired. Then, a severe cough and fever. A total of at least seven employees would fall ill with the virus, by her count. So would Aguilar’s sister-in-law.
Three weeks into her illness, Aguilar had a stroke, which she attributes to the virus’ toll on her body. When she left the hospital a month later, one side of her body and face was paralyzed. She struggles to walk and talk. Her doctors say it
On Sept. 4, Aguilar filed a complaint with Cal/OSHA, the California Occupational Safety and Health Agency and the Alameda County Public Health Department. She alleged that her managers had failed to enforce mask-wearing or social distancing, and had hidden COVID-19 diagnoses from her and others. Kentucky Fried Chicken and Taco Bell did not respond to requests for comment.
Aguilar said she filed the complaint so her coworkers wouldn’t have to go through what she has. “El riesgo sigue todo el tiempo,” she said — the risk continues.
Aguilar said the county health department never followed up. Cal/OSHA’s response: a letter asking that the manager explain how the issues had been fixed.
“The Division has not determined whether the hazard(s), as alleged, exist(s) at your workplace and, at this time, the Division does not intend to conduct an inspection of your workplace,” the letter reads.
Cal/OSHA has sent a version of this letter to employers accused of not keepJose Suarez, a strawberry farmworker, wears a medical face mask as he stands near rows of strawberry fields in Watsonville, California, on Wednesday, July 29, 2020. Photo by David Rodriguez,
Paz Aguilar continued working
may be a year before she fully recovers.
The Salinas Californian ing workers safe from COVID-19 more annual inspection rate, which Cal/OSHA than 5,800 times since February. pegged at 25 percent over the past four Letters instead of inspections years. For non-coronavirus complaints filed during the pandemic, the rate is 12
During the pandemic, Cal/OSHA has percent, revealing how the agency has defaulted to responding to the vast specifically limited its enforcement of majority of worker complaints about workplace hazards related to the virus. coronavirus haz- The stratards with letters egy follows a rather than on-site March directive inspections, even as workplace outbreaks “We believe our from Gov. Gavin Newsom to focus have fueled spread of the virus across approach is the right on compliance assistance instead the state. Of the 6,937 one and has made a of enforcement. It has characterized COVID-related complaints the significant impact.” the chronically understaffed agency’s agency had received answer to a deluge between Feb. 1 and - CAL/OSHA CHIEF DOUG PARKER of COVID-related Sept. 27, Cal/OSHA complaints. has conducted on But the low inon-site inspection spection rate raises for just 352 of them — or 5 percent, ac- questions about how many COVID hazcording to a CalMatters analysis of Cal/ ards the agency may have allowed to perOSHA data. sist, and how many negligent employers
It’s a steep drop from the typical may have been given a free pass, despite
endangering their employees’ lives. said. “We believe our approach is the right
“There appears to be a very direct one and has made a significant impact.” connection between workplace enforcement and being able to stop the spread The choice to triage in our communities,” said Sen. María Elena During normal times, Cal/OSHA has Durazo, a Los Angeles Democrat, at a two ways to follow up on workplace Wednesday legislative hearing on worker complaints. safety during the pandemic. Continued on next page »
Research from the Harvard School of Public Health backs up Durazo’s observation. Waves of COVID-19 CA WORKPLACE deaths have followed waves of complaints about workplace safety across the country, according to a preprint published Wednesday. In Western states, complaints were correlated 10000 SAFETY COMPLAINTS AND CAL/OSHA’S RESPONSES, PRECOVID AND DURING 1012 772 (Other or no response) (Other or no response) with deaths 24 days later.
“Worker concerns COVID-RELATED may be an indicator of COMPLAINTS real risks, and failure to respond is a missed OTHER COMPLAINTS opportunity to intervene to mitigate disease transmission in the workplace and, in turn, the commu- 7500 nity at large,” the authors wrote. COVID-related The Californians enmeshed in workplace outbreaks — from meatpacking plant workers (Other or no response) ~2500 5813 complaints responded to with letter process to farmworkers brought from other countries — tend to be low-wage and Latinx. Many are 5000 immigrants.
To the heads of Cal/ OSHA and its parent agency, the Department of Industrial Relations, Durazo asked: “This is a double, triple crisis in the Latino community. So Responded to with letter process ~3700 Responded to with letter process any thoughts about what you’re going to do to really up the ante here?” 2500 2966
Cal/OSHA Chief Doug Parker responded that COVID-related Cal/OSHA has “tried to complaints focus our efforts on industries where there are low wage and immigrant workers,” like agriculture. “We thought that Responded to with on-site inspection 0 ~1500 352 552 responded to with on-site inspection Responded to with on-site inspection the use of these letter Estimated pre-pandemic Workplace inspections, while not as workplace complaints complaints filed in CA effective as an in-person over an average eight- in the eight months inspection, was going to month period in CA following Feb. 1, 2020 allow us to triage and TOTAL: ~7,700 TOTAL: 11,467then reach the most numbers of workers that Source: Cal/OSHA data submitted to Senate Special we possibly could,” Parker Committee on Pandemic Emergency Response
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Anonymous complaints, unless very targeted inspections than it has received serious, generally trigger a letter investi- complaints, a sign of the level of fear gation. Cal/OSHA sends an inquiry to the among farmworkers who worry they’ll employer. Depending on how serious the lose their jobs if they complain about complaint, the employer has between unsafe conditions. three and 14 days to either demonstrate The agency has also focused on aggresthe hazardous conditions were corrected sive outreach and education to employers or do not exist. Employers must post and workers about Cal/OSHA’s unenthe inquiry letter and their response in forceable industry-specific guidance on a public place at work. If Cal/OSHA is COVID safety in the workplace, Parker unsatisfied with the said. He pointed out response, it might that California has inspect in person. a higher inspection Otherwise, the case is closed. “Only the most ‘high rate than that of the federal government. Complaints that either allege a severe hazard or were submitted by a named worker typicalpublicity or high profile’ complaints get inspected.” Short-staffed and overwhelmed Cal/OSHA has ly launch an inspec- long been short tion: a conference with the employer, - CURRENT CAL/OSHA EMPLOYEE staffed, a problem only exacerbated a request for doc- during the pandemic. uments, a physical In June, about 21 perinspection, interviews cent of Cal/OSHA’s of managers and employees, and poten- field inspector positions were vacant. tially a citation. Industrial Relations director Katie Ha-
Cal/OSHA had already received more gan told senators on Wednesday that the than 80 COVID complaints when the department has tried to bridge the gap governor issued his March executive by luring back retired safety engineers, order directing state agencies to prioritize borrowing staff from other agencies and compliance assistance over enforcement. aiming to hire 65 more inspectors by
Agency staff should “have primary year’s end. focus on providing technical assistance The agency has been drowning in and support to have maximum effect to COVID work, said one Cal/OSHA employaddress the risk of COVID-19” and “focus ee whom CalMatters agreed not to name enforcement activities where there are because of retaliation fears. Many inspecallegations of the most serious violations tors are “scared like other people are of impacting health and safety,” the order being exposed at work,” the employee read. said, recounting that over the summer
Parker said Cal/OSHA has adopted a only 50 to 60 of nearly 200 inspectors policy of responding to all COVID com- volunteered to do field inspections. plaints, “except in the most serious cases,” The result, the employee said: Only with letter investigations and an offer to the most “high publicity or high profile” provide technical assistance — adding complaints get inspected. “shockingly few take that option.” In September, the agency announced
Newsom’s order was understandable, its first citations of two dozen employers said former Cal/OSHA chief Juliann Sum, who failed to protect workers at the given that compliance assistance means beginning of the pandemic. That’s nearly “you can touch more employers.” But as many employers as federal OSHA has there are consequences, too: “Some em- cited nationwide. ployers could be less conscientious know- The dinged employers span meating they won’t get inspected, and workers packing, agriculture, retail, health care might feel discouraged and frustrated.” and senior nursing facilities, and include
Labor advocates say on-site inspec- household names like grocer Ralphs, tions are likelier to create meaningful as well as lesser-known employers like change. Without an inspection, Cal/OSHA Overhill Farms, which was fined about can’t cite an employer for a health and $200,000. safety violation. “That’s the crime of what’s going on ‘Pretty disappointing’ now,” said Eric Frumin, safety and health In the Cal/OSHA region that spans director for Change to Win, a national Orange County, San Diego and the labor coalition. Imperial Valley, at least eight enforcement
Parker said that in the agricultural staff have left since the pandemic’s onset, industry, the agency has conducted more according to an analysis of staffing charts.
Cal/OSHA’s September letter inquiry.
Paz Aguilar, 54, contracted coronavirus over the summer, along with at least seven of her coworkers, by her count, at a combined Kentucky Fried Chicken and Taco Bell in Oakland. Three weeks into her illness, a stroke left one side of her body paralyzed. Photo via Aguilar
That leaves a third of positions vacant — including the regional manager and three of four district managers.
That’s where Alice Berliner and Zenaida Perez Fuentes of the Southern California Coalition for Occupational Safety and Health helped several truck drivers file a complaint in mid-July alleging unsafe COVID conditions at a cement processing plant in San Bernardino County.
Trucks weren’t getting cleaned between uses, employees weren’t notified when their coworkers fell ill with the virus, and those who brought up concerns were told “if they didn’t want to work there, they could leave,” Berliner said. CalMatters agreed not to name the company due to retaliation fears.
According to federal records of the complaint, a Cal/OSHA officer noted that the workers reported a “failure of employer to update the Injury and Illness Prevention Program to integrate Cal/ Osha guidance regarding COVID-19.” Additionally, the workers alleged dangerous work conditions related to truck safety and exposure to silica, a known carcinogen.
Berliner says that the complaint included pictures and text messages, because the workers thought the more evidence they provided, they more likely they’d be to get an on-site inspection and real change.
Instead, records show Cal/OSHA did a letter investigation and then closed the complaint.
It’s “pretty disappointing,” Berliner said. Letter investigations are “just not sufficient in pushing employers to do the right thing because it doesn’t result in a real citation.” l
This article is part of The California Divide, a collaboration among newsrooms examining income inequity and economic survival in California.
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