OSHA’s Job Is Workplace Safety. In the Covid-19 Pandemic, It Often Struggled.

When Kentucky warehouse employees complained that masks weren’t being worn at their site, when a group representing Illinois packaging workers asked if OSHA would enforce social distancing and when workers at a poultry plant said it wasn’t responding to a disease outbreak, the federal agency or a state counterpart took little action as infections at the sites increased, according to interviews, OSHA documents and health department records.

OSHA’s mandate, spelled out in a 1970 law, is to help ensure safe and healthy working conditions, by setting workplace standards and enforcing them.

But the agency’s rules are largely designed to minimize chemical-exposure risks and injuries such as falls and electric shock—for the most part, problems that are readily identifiable and correctable. It has struggled to address the altogether different hazard of the coronavirus: invisible, lacking a sure corrective and permeating blurred lines between workplace and the world outside.

Separate agencies have roles in administering OSHA’s mission, and they must be as effective as the federal government. Federal OSHA, which regulates workplaces in 29 states, sets standards for state agencies elsewhere.

Federal OSHA said when the virus struck that it had rules in place to protect workers. Yet some state agencies took an opposite position—that there were no rules to enforce to address many Covid-19 concerns. Other state agencies created rules of their own.

Workers flooded state and federal OSHA agencies with complaints alleging their workplaces weren’t safe. On the federal level, OSHA’s compliance-officer staff had declined in recent years. Managers needed to limit the officers’ exposure to Covid-19. Compounding the challenge early on were shortages of masks and shifting guidance from authorities about who needed to wear them, in the face of a poorly understood threat.

The Wall Street Journal identified more than 1,000 worker deaths from Covid-19 that circumstances suggest were linked to workplace transmission of the virus but that were never investigated by an OSHA agency, as of early February. Many hadn’t been reported by employers. The difficulty of determining when a Covid-19 death should be deemed work-related was one of the challenges facing OSHA during the pandemic.

It can’t be known whether different actions by regulators or others could have prevented any specific worker death from Covid-19. A virus in the workplace isn’t a hazard easily fixed, like a wobbly scaffold. But some health and safety experts argue that, especially last spring, OSHA missed repeated chances to ensure that employers did all they could to minimize risk to essential workers, those who must be on site producing goods or delivering services.

“The pandemic has exposed OSHA’s great weaknesses,” said David Michaels, the OSHA director in the Obama administration. “Workers have never been so threatened by a hazard as they have by the coronavirus.”

A report dated last week by the U.S. Department of Labor’s Office of the Inspector General said that a lack of OSHA on-site inspections remained a problem during the pandemic, and that it was particularly problematic that OSHA hadn’t been tracking which inspections were remote and which were on-site. “With most OSHA inspections done remotely during the pandemic, workplace hazards may go unidentified and abated longer, leaving employees vulnerable,” the audit found.

In a response included in the report, OSHA said it would begin tracking its remote inspections and implement other recommendations raised by the audit.

James Frederick, the acting head of OSHA, said in response to questions the agency is working with the inspector general’s office to improve its ability to protect workers from exposure to Covid-19 and advocate for those hit hardest by the pandemic.

It has always made clear the pandemic falls within its scope: “Eliminating hazards from COVID-19 remains a top priority for OSHA,” the federal agency said in a May 2020 note to staff.

OSHA took the position last year that it was doing effective virus-risk enforcement, pointing to the federal agency’s citations of employers after 263 virus-related inspections resulting in $3.5 million in fines.

President Biden has issued an executive order that asks OSHA to consider setting a new, emergency standard to address Covid-19, a step the federal agency under the previous administration declined to take.

The 1970 law that created OSHA says employers are responsible for providing employees with a workplace free of recognized hazards.

OSHA’s job is enforcing that obligation. To do that, federal OSHA has long had a policy of responding to virtually all complaints received, whether from workers or their representatives, sometimes by inspecting workplaces.

OSHA’s internal manual tells its officers to investigate all fatalities that result from an injury or illness caused by a work hazard, to determine the cause and whether there were any violations by the employer. Agencies typically do this by inspecting the workplaces to make sure they pose no risk to other workers.

OSHA agencies received 72% more complaints from February 2020 through January 2021 than in the year-earlier 12 months, agency data show. That came to nearly 93,000 complaints, about 57,000 of them related to the coronavirus.

The agencies performed workplace inspections after far fewer complaints than usual: 12%, versus 32% in the preceding 12 months, according to OSHA records. They inspected workplaces after less than 6% of the complaints that were related to Covid-19. Even complaints unrelated to Covid-19 led to inspections less frequently in the latest 12 months than in the preceding period.

Federal OSHA’s staff of compliance officers stood at 944 in January 2020, down from 1,106 in 2010. An official told Congress last year OSHA was trying to hire more, but doing so wasn’t easy. Mr. Frederick said the total now is 894. The agency has long been viewed as a less forceful regulator than some other agencies, with limits on fines it can impose and a lengthy review process for new regulations.

To assess OSHA agencies’ performance in the pandemic, the Journal examined inspection and complaint documents from federal and state OSHAs, as well as disease-outbreak data from state and local departments of health and data on nursing-home staff deaths from the Centers for Medicare and Medicaid Services, or CMS. The Journal catalogued thousands of worker deaths, scouring local news reports and obituaries, and interviewed family members and co-workers of those who died.

To gauge whether worker deaths that weren’t reported to OSHA might have been work-related, meriting a report, the Journal applied OSHA’s guidelines. It also checked whether deaths occurred during Covid-19 outbreaks, as confirmed by local or state health departments, at the workplaces.

For a time last spring, OSHA told most employers they didn’t need to try to determine whether a worker death from Covid-19 was work-related. OSHA agencies typically use government records and media reports to identify unreported worker fatalities, but during the pandemic, they haven’t always closely monitored media death reports or data such as nursing-home fatality totals from CMS, according to government records.

By looking at Covid-19 figures in five states and nursing-home data from CMS, the Journal identified more than 500 Covid-19 outbreaks involving some 6,000 infections at workplaces where employees had earlier complained to OSHA of unsafe conditions.

The Journal also found 180 worker deaths from Covid-19 that occurred four weeks or more after complaints to OSHA agencies that the agencies didn’t investigate beyond corresponding with employers.

Workplace safety agencies slightly increased their inspection rates for Covid-19-related complaints after the early pandemic months of March and April but were still below levels of general complaint inspections, according to the Journal’s analysis. Federal OSHA didn’t make substantial changes to its approach after it laid out its enforcement protocols and priorities in April and revised them in May. Some state OSHA agencies began enforcing governors’ safety requirements for workplaces. Several other states issued emergency OSHA standards.

The Journal’s numbers are likely to substantially understate workplace-related employee deaths from Covid-19. Probable infection sources have been publicly identified for just a small fraction of what Centers for Disease Control and Prevention data show as 90,000 people of working age who have died of the disease.

Told of the Journal’s findings in December, Loren Sweatt, then acting head of OSHA, said in a statement: “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 who have now issued nearly 300 COVID citations and kept hundreds of thousands of workers safe on the job.”

The new acting director, Mr. Frederick, said the agency was working on potential changes in its enforcement efforts to “better protect workers and ensure the safety of its compliance officers.”

In an example of OSHA agencies’ conflicting approaches, Utah’s state agency responded to many coronavirus-related complaints by telling complainants the matter was outside its jurisdiction and declining even to inform employers of the concern, according to state officials and documents viewed by the Journal.

Asked about this, a spokesman for Utah’s state OSHA said it felt there were no Covid-19 rules for it to enforce until November, when it created its own emergency administrative rule, requiring mask-wearing for all employees.

Its prior no-rules stance conflicted with federal OSHA’s position that there were rules in place to address Covid-19.

Similarly, when an Illinois worker-advocacy group asked OSHA last spring about safety worries at a firm that packages soaps, a local director of OSHA replied that although it had received complaints of employers not following CDC guidelines, it couldn’t enforce these because they weren’t formal rules. The best OSHA could do was send employers an advisory letter, the director said in an email to the advocacy group, the Chicago Workers Collaborative.

OSHA later received two complaints from others about the soap-packaging plant, in Waukegan, Ill., alleging it ignored social distancing and cleaning guidelines, according to documents viewed by the Journal. In response to an April complaint, the local OSHA director told the employer, Visual Pak Cos., that OSHA wouldn’t conduct an on-site inspection, but the company should undertake one on its own.

Visual Pak in early May informed OSHA it was providing personal protective equipment, taking workers’ temperatures and doing extensive sanitation, according to correspondence viewed by the Journal. After it provided the names of disinfectants used, records of the case show, the agency closed the complaint.

The company didn’t mention that two workers, 59-year-old Reyna Salgado and 40-year-old Javier Escobedo, had just died during a Covid-19 outbreak at the workplace, according to documents viewed by the Journal and interviews with family members. State records show at least 47 workers tested positive during the outbreak, according to documents obtained by the Documenting Covid-19 project from Brown Institute for Media Innovation, a program of Columbia University and Stanford University.

Visual Pak declined to comment on the outbreak or to why it didn’t report the deaths to OSHA, nor would it say how many people work at the plant. The company described worker safety as its top priority and said its efforts include social distancing and requiring employees to stay home if they feel unwell.

In Kentucky, the state Labor Cabinet, which houses Kentucky’s Occupational Safety and Health Program, received eight complaints by the end of March about United Parcel Service’s Worldport distribution hub in Louisville. Some alleged a lack of sanitizer, masks or effective distancing in places including shuttle buses.

The Kentucky Labor Cabinet didn’t take immediate action on the complaints, according to information provided by Cabinet officials. By mid-April, two employees who worked at the site had died of Covid-19.

The spokeswoman said the March complaints weren’t formal OSHA complaints because they had been filed to the Labor Cabinet’s “KYSafer” portal, a hotline set up in the pandemic.

UPS didn’t report either death as a work-related fatality. Asked why, a spokesman said, “There is no way to know where someone was actually infected.”

OSHA took note of that problem in April and put out guidance saying that for employers not involved in health care or emergency services, the agency wouldn’t enforce its normal requirement that companies determine whether the death of a worker was work-related. Instead, they needed to make this determination only if there was objective evidence a Covid-19 case might be work-related.

However, new OSHA guidance effective May 26 said all employers should seek to determine whether any employee who died of Covid-19 had caught it at work. The new guidance said Covid-19 cases that arose during an outbreak among employees working together or in close contact with the public should likely be considered work-related.

The essential workers in jobs such as warehouse work tend to be lower income, and Black and Latino employees are highly represented in their ranks relative to the population as a whole, studies by health agencies show.

One UPS Worldport worker who died in April was Howard Hopkins, 55. His sister, Michelle Hopkins, and his roommate, Tracey Taylor, said they believed he caught the virus on the job because he had little activity outside of work, and he had fretted about a lack of mask wearing at UPS and about crowded shuttle buses.

At the time, UPS let workers forgo masks if they signed waivers. The CDC on April 3 had urged everyone to wear masks in public, changing a prior recommendation of masks primarily for a smaller group, such as health-care workers and people with symptoms.

The other UPS worker’s death appeared in news reports and was confirmed by the state’s governor during a briefing. Mr. Hopkins’ union issued a statement about a member’s death without naming Mr. Hopkins.

Kentucky OSH said it investigates worker deaths unreported by employers if it learns of them through the media or referrals from other agencies. In this case, it didn’t look into either UPS death because it wasn’t made aware of them, said the Labor Cabinet spokeswoman.

Kentucky OSH officials inspected the UPS Worldport site at the end of April, acting as agents of public health, according to the spokeswoman. By then, there had been about 50 complaints about the workplace to the Kentucky Labor Cabinet, records show.

In mid-May, Kentucky OSH personnel sent UPS a notice of deficiency about mask wearing and a lack of adequate distancing. The agency recommended remedies, including requiring that any waiver of mask rules be signed by a health professional. UPS told OSHA it would take corrective steps, including better distancing on shuttles. Kentucky OSH issued no citation, although it opened a formal inspection of the work site the next month.

In August, Kentucky OSH received correspondence alleging a lack of proper mask wearing among many people at the UPS site. This time, the agency didn’t notify the employer, closing the complaint without follow-up.

Kentucky OSH didn’t consider this a valid complaint based on state law, according to the spokeswoman for the Kentucky Labor Cabinet. She said the letter had been forwarded by the U.S. Department of Labor, and it addressed union issues in addition to Covid-19 matters, which the agency believed it had already addressed.

After the Journal provided information about the Worldport situation and April deaths, Kentucky OSH opened investigations into the fatalities in December, Labor Cabinet officials said.

The agency later cited UPS for “failing to protect employees from exposure to Covid-19,” culminating a prior investigation, according to a Labor Cabinet spokesman.

He said UPS is contesting the case and in the meantime doesn’t have to abate the violations. The fines total $10,450, records show.

A spokesman for UPS declined to comment on the citations but said the company “has worked hard throughout the pandemic to provide for the safety of our employees and to comply with state, local and federal Covid-19 safety rules, as well as to ensure our people understand their personal obligations to the law and each other’s well-being.” UPS said it rolled out extensive safety measures, including requiring mask-wearing after Kentucky’s governor mandated that in May.

At the Worldport site, 838 members of the 11,600-strong workforce have been infected since the start of the pandemic last year, based on UPS’s reports to Louisville’s health department as of early February. A company representative said its rates are in line with the community’s.

The Kentucky Labor Cabinet said that workplace-safety officials have “diligently worked to carry out their permanent assigned roles,” plus new responsibilities as agents of public health, using technology as much as possible and safely conducting on-site inspections when warranted.

Although many OSHA rules were designed to prevent injuries, the agency worked on drafting infectious-disease rules for health-care facilities after the H1N1 flu of 2009. It didn’t complete the process of formalizing them and they didn’t go into effect.

Besides specific rules, OSHA has a broad principle that workplaces must be hazard-free, known as the General Duty clause.

It isn’t often invoked. After a complaint to the North Carolina Occupational Safety and Health Division on April 6 alleged that a poultry plant was exposing workers to the coronavirus, the regulators wrote to the plant operator but said: “Since the allegation does not fall under an OSHA standard or the General Duty clause, a written response to this letter is not required.”

The operator, Seaboard Corp.’s Butterball LLC, did respond, with a note saying it was committed to safety and was considering supplying masks and erecting barriers at the 3,500-worker facility, in Mount Olive, N.C.

Two more complaints came in to North Carolina’s workplace safety agency. One on April 17 said there were 17 Covid-19 cases at the plant and there was “a concern that the virus is spreading due to employees working very close to each other.”

That same day, the Duplin County, N.C., health-services director told the state health department “we are afraid that this plant is going to explode with positive cases within the next 4-7 days,” according to an email obtained by the Documenting Covid-19 project.

The North Carolina OSH Division again wrote to Butterball, reiterating that the agency had no coronavirus-related standard to enforce and again asking the company to investigate, but not requiring any response.

The Division said it follows federal OSHA-mandated protocols for responding to complaints. Federal OSHA’s standard letter, however, says employers should be asked to report the result of their internal investigations. It also says that a number of OSHA rules might apply to Covid-19 hazards.

By the end of April, Covid-19 cases at the poultry plant numbered 80, according to county health documents. The county and the company jointly signed an agreement outlining safety measures.

In May, William Moore, a 29-year-old worker at the plant, began to feel sick. After about a week, he died of Covid-19. Butterball didn’t report his death to North Carolina OSH. A spokeswoman for the company said it didn’t believe he had contracted the virus at work.

Mr. Moore’s family members said he avoided nearly all activities and social contact except traveling to and from the Butterball plant.

Butterball said its voluntary protocols at the time “were consistent with those of other manufacturers, evolving CDC and OSHA guidance and available” protective equipment. It said its measures included company-provided masks, physical barriers on production lines and a workspace reconfigured for distancing. It said it has a thorough contact-tracing system and is committed to best practices to reduce risks.

In some instances, when OSHA learned of worker deaths that employers hadn’t reported, it asked the employers to investigate and then accepted their conclusions without doing a fatality investigation, which typically entails interviewing family and co-workers and inspecting work sites.

At a Walmart Inc. store in Aurora, Colo., cashier Sandra Kunz, 72, and security guard Lupe Aguilar, 69, died within days of each other in April, deaths that Walmart didn’t report to OSHA.

Local news publicized their deaths. OSHA sent Walmart a letter referencing a death and requested a response but didn’t open fatality investigations.

In a more than 300-page reply, Walmart told OSHA about its procedures to provide a safe work environment and provided information about Ms. Kunz, a company spokesman said. He said Walmart concluded there was no evidence Ms. Kunz had contracted the virus at work, a company spokesman said.

Family members said Ms. Kunz worried that Walmart hadn’t provided masks or guidance on how to handle coughing customers. They said she hadn’t been informed about any co-workers falling ill. Eighteen employees became infected as part of the outbreak, Colorado’s health department said.

Based on Walmart’s response, OSHA closed the case with no citation of the employer.

As for Mr. Aguilar, Walmart said it didn’t report his death because he wasn’t an employee but a contract worker. The company pointed OSHA to his direct employer, Brosnan Risk Consultants, which said in a statement it believed neither company was obligated to report his death at that time.

An OSHA representative said companies are supposed to report any work-related death of a person they supervise even if the person isn’t one of their employees.

Gia Aguilar, Mr. Aguilar’s wife, said she believes he caught the virus on the job because he wasn’t venturing out beyond work.

Ms. Kunz died April 20. Walmart said it began providing masks to employees and mandating their use that day and quickly took other safety steps, such as social-distancing measures.

At least 619 Walmart staffers in Colorado have contracted Covid-19, in 38 workplace outbreaks, according to the state health department.

Walmart declined to comment specifically on its Colorado worker infections, but it said that “the health of our associates tends to track the health of the country as a whole.”

—Graphics by Joel Eastwood

—Alejandro Lazo, Nora Eckert and Lisa Schwartz contributed to this article.

Endnotes

The people pictured at the top of this article are a handful of the workers who have died of Covid-19. All either died following complaints to OSHA about their workplaces or their deaths went uninvestigated when employers didn’t report them to OSHA agencies—because, according to most of the employers, they didn’t think the deaths were work-related. In lawsuits and interviews, loved ones of some of the deceased said they believed their family members caught the coronavirus at work.

Lupe Aguilar, 69, was working as a security guard at a Walmart in Aurora, Colo., when he contracted the virus. He was an avid photographer who died on April 17 after struggling on a ventilator. “I know in my heart that he heard me tell him how much I loved him one last time,” said his wife, Gia Aguilar. PHOTO: GIA AGUILAR

Jose Andrade-Garcia, with daughter Maria Andrade, was a 61-year-old worker at a JBS meat-processing plant in Marshalltown, Iowa, who died May 15. “He was the type of person who would pretty much do everything for his kids,” his daughter said. PHOTO: ANDRADE FAMILY

Enock Benjamin, 70, a meat plant worker for JBS in Souderton, Pa., died on April 3. Mr. Benjamin was a union steward whom colleagues called a “champion of the people,” according to a lawsuit later filed by his family.

Barbara Birchenough, 65, a nurse at Clara Maass Medical Center in Belleville, N.J., was hospitalized about a week before she planned to retire, said daughter Kristin Birchenough Carbone. Ms. Birchenough died on April 15. PHOTO: KRISTIN BIRCHENOUGH CARBONE

Javier Escobedo, 40, worked at soap packager Visual Pak in Waukegan, Ill. He died on May 3. “He was always funny, always trying to make everyone smile,” sister Yadira Escobedo said. PHOTO: ESCOBEDO FAMILY

Robert Fentress, 44, a marine electrician for General Dynamics at a shipyard in Norfolk, Va., died on April 9. “He was the rock of the family,” sister Toshiba Fentress said. PHOTO: JAY ASKEW

Glenmar Gabriel, 37, with girlfriend Evelyn Guevarra, was a ramp worker for American Airlines’ Envoy carrier in Fort Worth, Texas. He died on April 5. PHOTO: EVELYN GUEVARRA

Pwar Gay, 46, worked as a meat cutter at a Tyson Foods meat-packing plant in Amarillo, Texas. She died on May 8. PHOTO: GAY FAMILY

Gerardo Gutierrez, 70, was a deli worker at a Publix store in Miami Beach who died on April 28. PHOTO: GUTIERREZ FAMILY

Sandra Kunz, 72, died of Covid on April 20, two days after her husband, Gus Kunz. Her family had pressed her to retire from her job as a Walmart cashier in Aurora, Colo., when the pandemic broke out, but she didn’t want to. “I think that was a source of pride for her, to be able to work at Walmart,” said Jennifer Cochran, her niece. PHOTO: JENNIFER COCHRAN

Regina Lim Lee, left, with her sister and mother, who also died of Covid-19, was a 58-year-old cruise agent at Costco in Issaquah, Wash., who died on March 16. PHOTO: LEE FAMILY

Kipp Lyons, left, was a 59-year-old activities coordinator at Ohio Living Rockynol nursing home in Akron who died on April 22. “She was dedicated to helping Alzheimer’s and dementia patients get a little bit of themselves back,” said her husband, Patrick Lyons. PHOTO: LYONS FAMILY

James McKay, 75, was a grocery clerk at a King Soopers store in Denver who died on May 23. PHOTO: MCKAY FAMILY

William Moore, with fiancée Trizetta Pone, worked at a Butterball poultry plant in Mount Olive, N.C., and died May 26 at age 29. He played drums at church every Sunday and loved to sing and fish, family members said. “Everybody loved him,” said Ms. Pone. PHOTO: TRIZETTA PONE

Randy Narvaez, seen with sister Nicole Trujillo, was a 51-year-old worker at the King Soopers grocery chain in Denver. He died on May 17. PHOTO: NARVAEZ FAMILY

Clara Newkirk, a 70-year-old truck-control agent at FedEx in Newark, died on April 22. She had worked there for 25 years and colleagues knew her as Mama Clara, “a mother to all those around her,” said daughter Stephanie Newkirk. PHOTO: STEPHANIE NEWKIRK

Catherine Pace, 65, a paint-shop worker at Fiat Chrysler in Warren, Mich., died on March 27. “She was this bright, bubbly being, a little bitty woman [who] baked a sour cream pound cake everyone just raved over,” said daughter Tonya Pace. PHOTO: MICHAEL MILLS PHOTOGRAPHY

Janine Paiste-Ponder, 59, a nurse at Alta Bates Summit Medical Center in Oakland, Calif., died on July 17. “My mom would be that go-to person,” taking extra shifts when others called out sick, said daughter Dominique Paiste-Ponder. PHOTO: PAISTE-PONDER FAMILY

Gonzalo Peralta, 55, seen with his son, Roberto, and daughter Lyrissa, worked at Tyson Foods in Emporia, Kan. He played in the local soccer league and stepped up to fill in for colleagues as they fell sick with Covid-19, said his wife, Chrysanne Peralta. He died on June 20, his son’s birthday. PHOTO: PERALTA FAMILY

Howard Rogers was a 55-year-old maintenance worker for CTtransit, a service of the Connecticut Department of Transportation. He died on May 14. “Howard was my everything,” said his wife, Denise Rogers. “What is a person supposed to do when the love of your life for over 20 years isn’t here anymore?” PHOTO: DENISE ROGERS

Alfred Salvatore, 47, with his daughters and his wife, Natalie Salvatore, was a service technician for Verizon in Feltonville, Pa., who died on April 24. Ms. Salvatore said he had helped service a nursing home’s cable connection before he fell ill. PHOTO: SALVATORE FAMILY

Shawna Snyder, 40, a nurse at Banner Health’s hospital in Tucson, Ariz., was a Navy veteran who was proud of her Navajo heritage. She died July 3 after weeks on a ventilator, leaving behind four children, the youngest ages 2 and 3. PHOTO: FAMILY OF SHAWNA SNYDER

Alan Twofoot, 51, a payroll technician at the Department of Veterans Affairs in Bedford, Mass., died on May 12. PHOTO: TIFFANY TWOFOOT

Elizabeth Wiles, left, with son Angelo, was a 69-year-old housekeeper at Brighton Rehabilitation and Wellness Center in Beaver, Pa., who died on May 10. PHOTO: WILES FAMILY

Sue Williams-Ward, 68, was a home health aide at Together We Can in Indianapolis. She fell ill after her colleague on the prior shift also fell sick, said her husband, Royal Davis, and she died on May 2. “She was a compassionate person, a giving person, always there to help somebody else,” Mr. Davis said. PHOTO: FAMILY OF MS. WILLIAMS-WARD

Write to Alexandra Berzon at [email protected], Shalini Ramachandran at [email protected] and Coulter Jones at [email protected]