Federal complaint: Iowa OSHA "failed to protect workers" from COVID-19
Eight groups representing workers, Latinos, immigrants, and civil rights advocates have filed a federal complaint documenting wide-ranging failures of Iowa's Occupational Safety and Health Administration (OSHA) to do its job.
The November 13 complaint asks federal OSHA officials to investigate the state agency and compel it to address six broad problems:
1. Iowa OSHA failed to follow its own procedures. Both during the pandemic and in years before, Iowa OSHA failed to conduct on-site inspections in response to complaints of hazards that have caused or could cause serious physical harm or death to workers, in violation of their own procedures. During the pandemic, Iowa OSHA's failure to inspect meatpacking plants and nursing homes resulted in great numbers of workers being infected with COVID-19, the spread of COVID-19 into the community from the workplace, and deaths of workers.
2. When Iowa OSHA did conduct on-site inspections following COVID-19 complaints, those investigations were inadequate.
3. Iowa OSHA enforcement provisions and policies are inadequate.
4. Iowa OSHA has made it too difficult for workers to file complaints with the agency, thereby abridging worker rights and failing to be "as effective as" federal OSHA.
5. Iowa OSHA has too few inspectors who perform on-site health and safety investigations.
6. Iowa OSHA fails to provide sufficient information to complainants regarding the outcome of their complaints.
The groups joining in the effort are the ACLU of Iowa, American Friends Service Committee Iowa, Forward Latino, the Iowa AFL-CIO, Iowa Citizens for Community Improvement, Iowa Justice for Our Neighbors, the Iowa League of United Latin American Citizens, the Iowa State Building and Construction Trades Council, and the Indiana, Illinois, and Iowa Foundation for Fair Contracting.
The complaint notes that Iowa OSHA conducted an inspection in only five cases out of 148 COVID-19 related complaints workers had filed by early October. State officials closed about 97 percent of those cases "without any investigation at all." One example: a complaint in early July warned that an employee at the Good Shepherd Health Center in Mason City was still coming to work after testing positive for coronavirus. Iowa OSHA did not conduct an on-site inspection. "Good Shepherd went on to become the site of one of the largest known nursing home-based outbreaks of COVID-19 in the state so far, with 122 residents and staffers becoming infected as of August 3."
In at least seven cases, news reports or complaints filed by elected officials resulted in a COVID-19 related inspection of a meatpacking plant. However, those investigations "were completely inadequate and failed to protect workers."
Even worse: "Despite many COVID-19 infections among Iowa meatpacking workers, Iowa OSHA has not issued any safety citations; instead, it has only issued a single citation for a record keeping violation," the complaint notes. Ryan Foley reported on that case for the Associated Press in September. The result was a $957 fine for the Iowa Premium Beef Plant in Tama.
During a November 13 news conference, AFL-CIO president Charlie Wishman said the United Food and Commercial Workers and Iowa Federation of Labor met with Governor Kim Reynolds in April and pleaded for the state to enact an "infectious disease standard–not guidelines that aren't enforceable, but an infectious disease standard" to provide safeguards to workers in light of COVID-19. However, nothing was done.
Systemic problems predate the pandemic. "Iowa OSHA has a long history of not adequately investigating serious and life-threatening work conditions," the complaint shows. Wishman said labor organizations have called for increasing the number of OSHA inspectors for years.
Dylan Parker told reporters that in three years of working for the Indiana, Illinois, and Iowa Foundation for Fair Contracting, he has filed "dozens of complaints" with Iowa OSHA about potentially deadly hazards on construction sites. In his experience, the agency "never investigates." Instead, they send the employer a letter about the allegation. After the employer responds in writing, OSHA closes the case.
By way of example, Parker shared this picture, which he took at a job site in Clinton. This worker was at risk of being crushed if the earth collapsed around him.
Parker submitted this photograph as part of a complaint, but Iowa OSHA did not send an inspector to the site. They wrote to the employer about the allegation, and the employer wrote back claiming (falsely) they had a trench box to keep workers safe. OSHA closed the case.
When the same contractor subjected workers to the same hazard across the Mississippi River in Moline, Parker filed a complaint with an OSHA office in Illinois. Inspectors showed up on-site and gave the employer a citation for leaving workers unprotected in an excavation.
Mary Montgomery of the Iowa Division of Labor told Bleeding Heartland via email,
Iowa OSHA has been made aware of the complaint filed by the ACLU regarding Iowa OSHA's responsibility to assure safe and healthy working conditions for Iowa's workers. We would welcome the Federal OSHA investigation, which will address the complaint items. Iowa OSHA will fully cooperate with federal investigative authorities, and will respond to any findings and/or recommendations at the proper time.
Reynolds' spokesperson Pat Garrett told the Associated Press that the governor "believes any federal review would find Iowa OSHA has followed all guidance to protect Iowa workers throughout this pandemic."
Appendix 1: Full text of Complaint About State Program Administration filed with federal OSHA on November 13
November 13 news conference discussing the complaint and what happens next:
Appendix 2: November 13 news release from groups that joined in the complaint
Des Moines, Iowa — Today 8 Iowa labor and civil rights groups filed a federal complaint against Iowa OSHA because that agency has been grossly negligent in protecting Iowa workers, not even following its own rules.
Representing workers in meatpacking, the dairy industry, construction, transportation, health care facilities, nursing homes, and other industries, the advocacy organizations are filing the formal complaint with federal OSHA in an effort to force Iowa OSHA to do the key job it was created to do—protect workers from life-threatening working conditions.
The groups have filed a CASPA (Complaint About State Program Administration) to urge federal OSHA to launch an investigation into the negligence of Iowa OSHA. With the onset of COVID-19, numerous Iowa workplaces are not properly protecting their workers, and Iowa OSHA is not investigating complaints about those workplaces properly. Further, Iowa OSHA has a long history of not adequately investigating serious and life-threatening work conditions.
It's important to note that the hardest-hit by COVID-19 in the workplace have been immigrants, Black, and Latinx Iowans. They fill the front-line and essential worker roles, such as meatpacking, that have been so hard-hit by the pandemic. For example, nationally, 44 percent of meatpacking workers are Latinx and 25 percent are Black.
The CASPA is being filed by the ACLU of Iowa, American Friends Service Committee Iowa, Forward Latino, the Iowa AFL-CIO, Iowa Citizens for Community Improvement (ICCI), Iowa Justice for Our Neighbors (Iowa JFON), the Iowa League of United Latin American Citizens (LULAC), the Iowa State Building and Construction Trades Council, and the Indiana, Illinois, and Iowa Foundation for Fair Contracting (IIIFFC).
Not Following Its Own Rules in Conducting On-Site Inspections
Iowa OSHA's own rules specify that it must do an on-site investigation if 1) a formal complaint, signed by a worker, is made with allegations of working conditions that could lead to serious physical harm or 2) a formal or informal complaint—unsigned by a worker or submitted by a nonworker—is made about working conditions posing an imminent danger. But time and time again, Iowa OSHA has failed to conduct on-site inspections in response to these types of complaints. This has become especially concerning as thousands of Iowa workers have become infected with COVID-19.
As of October 4, workers had filed 148 COVID-19 related complaints with Iowa OSHA that detailed dangerous working conditions; 36 of those were formal complaints. Only five of those complaints (three formal and two informal) resulted in an inspection. All the others were closed with no inspection at all.
Iowa OSHA did conduct 7 other on-site inspections of meatpacking plants, but those came only after a state lawmaker or media reports sounded the alarm publicly about large-scale COVID-19 outbreaks. Those 7 on-site inspections also happened after Iowa OSHA had failed to respond to earlier complaints. If Iowa OSHA would have responded to the COVID-19 complaints earlier with on-site inspections, those outbreaks might well have been reduced.
Some of Iowa OSHA's failures to protect workers have been reported in the media, with lawmakers criticizing the state's lack of action.
Even now, Iowa OSHA has not issued a single safety citation in the very few on-site inspections it did do. Instead, it issued just a single citation—for a record-keeping violation.
ACLU of Iowa Legal Director Rita Bettis Austen said, "This CASPA details the legal duty that Iowa OSHA has, which is to protect workers, especially during a pandemic. But tragically, our investigation found that Iowa OSHA is not doing its job. Workers are dying, and Iowa OSHA is doing very little to prevent that. We're asking federal OSHA to step in and force change to protect Iowans where the state has failed to do so. We are also hoping this complaint will be a springboard for state policymakers to take state-level action to protect Iowa workers."
The 114-page complaint and appendix detail how, in case after case, workers' lives are being put at risk—and in some cases dying—and Iowa OSHA is doing very little to intervene. Unfortunately, it's impossible to know exactly how many Iowa workers have died from COVID-19 because state officials are refusing to release those numbers.
But in case after case, it is clear that Iowa OSHA's lack of action likely resulted in unnecessary serious illness, hospitalizations, and deaths from COVID-19.
Good Shepherd Health Center in Mason City
One of the most alarming examples of Iowa OSHA's failures was in response to a complaint about the Good Shepherd Health Center in Mason City. On July 3, a complaint was filed with Iowa OSHA alleging that an employee was working even after they had tested positive for COVID-19. While the Iowa Department of Inspection and Appeals conducted an investigation at Good Shepherd in late June, an on-site inspection by Iowa OSHA in July would have been important because OSHA focuses on worker safety, rather than simply resident safety, though of course the two are linked.
Also, Bettis Austen points out that "the same conditions that existed in June might not exist in August. An OSHA inspection may have found violations another state agency did not. The complaint described a serious threat to the health of workers and residents. That should have further prompted Iowa OSHA to conduct an on-site inspection."
Good Shepherd went on to become the site of one of the largest known nursing home-based outbreaks of COVID-19 in the state so far, with 122 residents and staffers becoming infected as of August 3.
JBS/Swift Pork Processing Plant in Marshalltown
On April 1, LULAC contacted Iowa OSHA, filing a complaint about life-threatening working conditions. The complaint said that JBS was requiring people to work even if they showed signs of COVID-19, something that has also been reported in the media. It alleged that workers were working shoulder-to-shoulder and employees had no choice but to be in close proximity to each other in all sorts of spaces, including cutting and processing rooms, break rooms, and dressing rooms. The complaint indicated that only limited personal protective equipment was available.
Iowa OSHA, in violation of its own policies, declined to do an on-site inspection and instead merely sent a letter to the employer and closed the case.
After substantially ignoring LULAC's complaint, Iowa OSHA later did conduct an inspection of JBS in Marshalltown in late May 21 only after the media reported on the outbreaks in the plant.
"Iowa OSHA, state officials, and ag processing executives are acting as though meatpacking workers are disposable. As long as they can keep churning out meat to the masses, they don't seem to care how many people get sick, get their families sick, or simply die," said Joe Henry, political director of Iowa LULAC. "The inhumanity of this situation is appalling."
Agri Star Processing Plant in Postville
In early April, Iowa OSHA received a complaint about the plant not following guidelines, including employees working close together, employees being required to come to work ill, and lack of personal protective equipment. Further, management allegedly was telling workers "COVID-19 is a lie." All Iowa OSHA did was write a letter to the employer, receive a letter back from the employer, and closed the case with no inspection. A month later, there were 400 COVID-19 cases in the plant.
Tyson Foods Pork in Perry
In April, a complaint was filed with Iowa OSHA that the plant, which employs 1,250 people, was not following social distancing guidelines, including in the cafeteria and on the production floor, with people working elbow to elbow.
Again, no inspection was done in violation of Iowa OSHA rules. Instead, Iowa OSHA simply wrote a letter, asked for a response, and closed the case. However, Iowa OSHA was delayed even in doing that, waiting nine days to send the letter, and allowing eight more days for the company to respond. Then, just one week after Iowa OSHA closed the case, an outbreak of COVID-19 raced through the plant; 730 workers, or 58 percent of the plant, tested positive.
Many Other Workplaces Not Inspected
The CASPA details the many failings of Iowa OSHA to protect workers in other businesses, according to other complaints filed alleging the following imminent dangers to workers:
Employees who were documented as being at high-risk for COVID-19 were still compelled to work. At the Community Choice Credit Union in Johnston, for example, the complaint alleged employees who were pregnant, had asthma and/or hepatitis were required to work in the call center, despite having a doctor's note confirming their medical condition.
Workers were being required to come to work even though they were actively ill with COVID-19. One example complaint concerned Care Initiatives in Odebolt, which operates a number of nursing homes throughout the state. The complaint alleged that employees who called in with temperatures and other COVID-19 symptoms, such as a sore throat, nausea, or dizziness, were told that they must come into work anyway.
Facilities were not being cleaned and disinfected even after workers tested positive, according to a complaint about Prairie Farms Dairy in Dubuque.
Testing was inadequate. At Ryan Companies in Dubuque, one complaint alleged, a number of employees had symptoms and were given a phone number to get a test but couldn't get the test. Meanwhile, the complaint alleged, some employees were not wearing masks, 6-foot distancing wasn't maintained in stairways and break areas, and hand sanitizer was not being replaced.
"In each one of these cases, the complaints informed Iowa OSHA that lives of employees potentially were being put at risk, so that should have triggered an on-site inspection—but that didn't happen," said Bettis Austen.
In meatpacking alone, it's reported that at least 3,840 workers tested positive. Many have endured serious illness, hospitalization, and in some cases died.
Key Elements of the CASPA
The CASPA requests the federal OSHA agency conducts a full investigation of the problems at Iowa OSHA, specifically:
A key problem is that Iowa OSHA isn't following its own policies. Iowa OSHA's guidelines for staff specify that if there is a complaint alleging hazards that could do serious physical harm or cause death, it must conduct an on-site inspection. But as the CASPA details, Iowa OSHA received 148 complaints, many of which met this criteria. Yet it failed to do an on-site inspection of the vast majority.
When Iowa OSHA did follow up with an on-site inspection, the investigation was inadequate.
Iowa OSHA's own Field Operating Manual," which guides state agency employees in how to respond to complaints, is not as protective as federal OSHA enforcement, and therefore is not adequate to protect Iowa workers.
It's too difficult for many workers to file complaints with Iowa OSHA.
Iowa OSHA has too few inspectors who perform onsite inspections.
It provides too little information to those workers or others who do file complaints on the status of their complaints.
Charlie Wishman, president of the Iowa Federation of Labor AFL-CIO, said that with Iowa OSHA, "There seems to be a lack of concern for the health and safety of working Iowans. Iowa OSHA is supposed to protect workers, not corporations. Now with COVID-19, we're seeing more of the same, but with a new and terrible twist. When Iowa workers are exposed to COVID-19, it doesn't threaten just their health and the health of their co-workers. It also threatens the health of their families, their friends, and everyone they come into contact with. Worker health is community health."
That's an important contributing factor in Iowa's high rate of worker fatalities. Iowa worker fatality rates are 40 percent higher than the national average, an AFL-CIO national study has found (based on 2018 data, see p. 196) The national average for worker fatalities is 3.5 per 100,000; Iowa's is 4.9 per 100,000.
Alejandro Murguia-Ortiz, community organizer at American Friends Service Committee Iowa and Iowa Justice for Our Neighbors said, "Iowa's meatpacking and food processing workers have time and time again proven their commitment to their families and their communities. Nonetheless, these workers and their families continue to feel unheard and ignored by leadership. Workers have limited avenues where they feel confident that their concerns will be heard and addressed. Iowa OSHA should be one of those avenues but they've decided not to play that role. Iowa OSHA watched as already vulnerable immigrant, refugee, and BIPOC meatpacking communities bore the brunt of the pandemic. When we called on Iowa OSHA to act, they did not. It should not be on these same communities and their allies to do Iowa OSHA's job of ensuring that workers are safe."
Long History of Inadequate Response by Iowa OSHA
While the COVID-19 pandemic has laid bare the problems at Iowa OSHA, our investigation showed that Iowa OSHA's failure to protect workers can be documented as far back as 2017. Prior to the pandemic, the IIIFFC had submitted numerous complaints to Iowa OSHA reporting hazardous working conditions in construction sites across eastern and southeastern Iowa, alleging dangers that had been identified as so serious that they were national OSHA priorities through OSHA's National Emphasis Program.
As with the COVID-19 complaints, Iowa OSHA has repeatedly failed to do on-site investigations of serious and life-threatening safety violations in the construction trades. Specifically, Iowa OSHA has failed to do on-site inspections even of conditions that were covered by OSHA's National Emphasis Program. These included violations of proper safety procedures when digging trenches and excavating, where the surrounding soil can collapse and suffocate a worker; and when dealing with respirable crystalline silica, which results from workers drilling, grinding, and crushing stone, concrete, and similar materials and processes. Exposure can lead to potentially fatal lung, kidney, and heart diseases.
Iowa OSHA responded to these complaints by failing to conduct on-site inspections, again violating Iowa OSHA's own rules on how these types of life-threatening workplace violations must be investigated.
Dylan Parker, construction analyst with IIIFFC, said, "Unfortunately, Iowa OSHA failing to protect workers is nothing new. The COVID-19 pandemic has made it more clear than ever that they are not willing to do what it takes to protect workers. But it's part of a pattern we've seen for years where they will not follow up with an inspection or penalty, even with the most egregious violations that clearly could result in a construction worker death."
Top image: Photos published by the League of United Latin American Citizens, taken at the JBS pork processing plant in Marshalltown, Iowa on March 27, 2020. Shared on Facebook by Joe Henry of LULAC and published with permission.
Tags: ACLU Of Iowa, Charlie Wishman, COVID-19, Federal Government, Joe Henry, Labor, Latinos, news, Nursing Homes, Safety, State Government