OSHA complaints reveal worker concerns amid COVID-19; agency inspectors eye construction industry
The Nevada Independent
On March 18, one day after Gov. Steve Sisolak announced sweeping orders to close nonessential businesses amid the coronavirus outbreak, a UPS employee filed a workplace complaint.
Sisolak’s directive — aimed at curbing the spread of COVID-19 and similar to orders in other states — exempted thousands of employees in sectors deemed essential to daily life, including health care, public transportation, manufacturing, construction and mail delivery.
But with protective equipment limited and companies scrambling to issue guidelines, workers were left concerned about contracting the virus on the job. The UPS employee was one example.
On March 18, the UPS worker was concerned enough that he wrote to the state’s Occupational Safety and Health Administration (OSHA). Employees at the UPS location in Sparks, the worker alleged, touched packages, but “are not provided with gloves, wipes, and hand sanitizer for protection against COVID-19.” The employee also said trucks were not cleaned between drivers.
OSHA reached out to UPS.
On March 24, UPS wrote: “Upon request of our employees and when in supply, we do provide our employees gloves, N95 masks, and hand sanitizer. If an employee were to request any of the above items, we issue the item when we have that item in supply. When our stock runs out of a specific item, we communicate that to the employee that is requesting a specific item.”
The company said it had dedicated crews to clean cars. It also sent photos of supplies on hand and a list of guidelines for employees to prevent the spread of coronavirus at the workplace.
After a little more back-and-forth, the case file ended there.
More than a dozen coronavirus-related case files obtained by The Nevada Independent follow a similar pattern. An employee files a complaint. An OSHA official starts a written inquiry, asking the employer to investigate the allegation and outline company safety precautions. In some cases, OSHA will do an inspection. Once the response is satisfactory, OSHA closes the case.
Dozens more cases are the subject of open inquiries. OSHA does not share records until a case file is closed. But according to a log obtained through a records request, at least four complaints related to COVID-19 have been filed against Tesla, another was filed within the state prison system and others have been lodged against big retailers, including Walmart and Lowe’s.
‘The state has made it a little firmer’
In recent weeks, OSHA’s focus has centered largely on one industry: construction.
After OSHA released a memo March 26 that pointed out many work sites were “visibly” violating social-distancing rules, agency officials continued to monitor construction sites across the state.
According to logs obtained by The Nevada Independent, OSHA inspectors have observed dozens of violations since the March memo. Jess Lankford, the chief administrative officer for Nevada OSHA, housed in the Division of Industrial Relations, said contractors are being cited for observed violations. On April 15, Lankford said OSHA had issued citations at more than 20 locations. These citations go on contractors’ safety records and can be as high as $13,494.
As of April 16, OSHA had issued 84 citations. The agency could not release a list of which contractors had been cited because it was still in the process of notifying the companies.
The days following the business closure announcement were marked by uncertainty. What rules did “essential” businesses have to implement to stay open? And how would they be enforced?
Four days after the original announcement, Sisolak signed Emergency Directive 003 on March 20, stating that construction, manufacturing and mining could continue to operate, but only with strict social distancing. As a result of the directive, OSHA required construction sites to practice social distancing at all times, a move that goes beyond federal OSHA coronavirus guidelines.
The federal rules encourage social distancing but allow for workers to be within six feet of each other for certain tasks, if they also gear up in personal protective equipment, known as PPE.
Instead, Nevada regulators required social distancing at all times.
“The state has made it a little firmer on its social-distancing protocol,” Lankford said.
And the state is enforcing that standard.
Over the past three weeks, OSHA officials have observed and logged numerous violations in large and small construction projects across Las Vegas and Reno. At least one violation was documented at Allegiant Stadium, where three workers are confirmed to have the virus.
According to a log of OSHA observations dated April 9, one regulatory agent observed “two employees in a manlift and 3 in a pit were not in compliance with the distancing protocol.”
The high-profile site has emerged as a symbol for those questioning the governor’s decision to allow construction to continue operating, despite the closure of other businesses. On at least three other visits, OSHA inspectors have not recorded any social distancing violations.
In a statement, Mortenson-McCarthy, the joint-venture constructing the stadium said it had not received a formal citation yet, “but we did recently receive an email with some photographs from OSHA that we are currently in discussions about.” According to a separate OSHA complaint log, two other individuals have filed other complaints about the site. The Mortenson-McCarthy group said it was working with OSHA to “meet or exceed the necessary standards and regulations.”
Because the cases are ongoing, further details of the complaints are not available.
In the case of Allegiant Stadium, Mortenson-McCarthy has implemented a slew of coronavirus mitigation measures, from verbal health screenings to staggered start times. Industry leaders said it was one of the prime examples of how to continue operating while reducing risk.
They also stressed that there is a protocol for reporting cases in Southern Nevada. Frank Hawk, vice president of the Southwest Regional Council of Carpenters, said it was important to share information throughout the industry about positive tests. When there are rumors, it hurts morale.
Hawk pointed to the process on April 11, when a fourth case was reported at the construction site for Resorts World. As the chair of the Nevada Construction Assembly, an industry task force reporting to the governor, he said he notified the group of the details. The worker was assigned to the pool deck. Hawk said the contractor closed the pool deck and sent close contacts home.
“I can get information out pretty fast to the individuals,” he said.
But at smaller or lower-profile construction sites, compliance concerns remain. Hawk said on April 14 that the Nevada Construction Assembly had received 31 complaints in Las Vegas.
“All of the complaints were on very small projects where maybe they didn’t have proper toilet facilities out there, no hand-washing stations and no directions for social distancing,” he said.
According to the logs, OSHA officials have observed multiple violations at construction sites where there is less information available about measures to prevent the spread of the virus.
In total, OSHA has issued 50 citations from its Las Vegas office and 34 citations from its Reno office. Lankford said a project could be shut down if it receives three or more citations.
Paul McKenzie, a former Reno city councilman and the secretary-treasurer for the Building & Construction Trades Council of Northern Nevada, said there needs to be a clearer reporting process — and mitigation strategy — for construction sites in the northern part of the state.
“One of the reasons that we are having the impact on our construction so heavily with COVID-19 cases is because there is not a clear procedure of what should happen on a job site if somebody tests COVID-19 positive,” he said, noting several cases on construction sites.
‘Brand new to everybody’
From industries to regulators, everyone is operating on new terrain addressing COVID-19.
“A few weeks ago, this was brand new to everybody,” Hawk said, when asked whether he thought the March 26 memo, warning the construction industry to social distance, was fair.
“It took some getting used to and the industry had to turn on a dime,” he said. “And so would I say that everyone was being perfect angels? No. It took us getting 15,000, 20,000 construction workers in a three-mile radius and [getting] them all to pull on the same side of the world.”
And coronavirus has forced OSHA to adjust, too. Lankford said the regulatory agency has moved to a skeletal process to protect its own staff from coronavirus. Inspectors are not going onto sites, Lankford said, and conducting investigations over the phone or on their computers.
From afar, OSHA looks for whether workers are complying with social distancing, even for tasks such as setting a window panel, that require workers to gather in close proximity. But watching from a distance has caused some frustration among the construction industry.
“When you’re taking a picture with a telephoto lens or something along those lines, it’s hard to judge,” Hawk said, noting that the photos of alleged violations can sometimes be misleading.
With the shutdown expected to continue for several weeks, some contractors are looking to the governor’s office to adjust its directives to the agency. Guy Martin, the president of Martin-Harris Construction, received photographs from OSHA showing workers on one of his projects not complying with social distancing, despite his efforts to institute stringent rules.
“Nobody could tell us what time the photographs were taken,” he said. “Nobody could even tell us what date the photos were taken. Nobody could tell us who was in the photographs.”
Martin, part of the Nevada Construction Assembly, said he understands why social distancing is important. But he said that there should be allowances made for construction workers to perform certain tasks if they are covered in PPE, as the federal OSHA guidelines allow. He argued that construction workers are already trained to mitigate for high-risk situations.
“You’re going to reach a point where you can run out of things you can do being six-feet apart from each other,” he said. “That is just a natural thing. That is going to happen.”
He does not necessarily fault OSHA. Everyone, he said, is operating in new territory.
“It’s unfair that anybody would get this sick,” he said. “It’s unfair that you would find yourself in quarantine. It’s unfair that our entire gaming corridor and convention’s program has been on lockdown. It’s all unfair. But this has gone to unreasonable and that’s not necessary.”
If social distancing is being strictly enforced at construction sites, he questions why OSHA is not applying it at other businesses, like grocery stores, where workers interact more with the public.
He is urging the governor’s office to consider revising the construction industry guidelines to allow for limited exceptions if construction workers use exhaustive protective gear, or PPE.
But the issue can be more complicated: Requiring PPE on all essential workers could take away from the respirators and equipment needed at medical facilities, which have faced shortages.
For regulators, coronavirus has left fewer agents on the ground to conduct inspections. In addition to regulating construction, OSHA is responsible for processing complaints from other private and public organizations, from hospitals to grocery stores and public transportation.
When OSHA receives an employee complaint or an allegation, it will either do an inspection or open an inquiry by sending a letter to the business involved. Now the regulatory agency is conducting more inquiries for complaints and postponing inspections in some cases.
“Because I’m holding people within the office and not putting people into the field, some of these inquiries that we do may be held for a while to take a look at later on,” Lankford said.
Coronavirus fills the complaint log
About 80 percent of the complaints OSHA has received in the past month-and-a-half have been about coronavirus, Lankford said. The governor’s directive closing nonessential businesses and other actions set off a string of complaints, much like the UPS example, filed with OSHA.
Closed case records obtained by The Nevada Independent show employees concerned about whether they are being protected from the virus. The concerns and the responses by several companies echo systemic issues identified throughout the country. There is a shortage of face masks and other protective equipment, even for workers continuing to provide critical services
Complainants aren’t always employees. The OSHA form asks complainants to indicate whether they’re an employee, representative of an employee, employer, federal safety and health committee or other, in which case they’re asked to specify. Many are filed anonymously.
But the exchanges — between the complainant and OSHA and then OSHA and the employer — reveal workplace safety concerns for essential employees in the age of coronavirus.
Take a closed case at the Tesla Gigafactory.
A representative of an employee lodged a complaint March 19 against Panasonic Energy of North America, which is part of the Gigafactory in Storey County. The hazard description: “Employees working in Winding and Assembly clean rooms are using change rooms with 80-100 employees at a time, which doesn’t allow for proper social distancing in the prevention of COVID-19.”
After OSHA receives a complaint, the agency turns around and notifies the workplace in a letter, noting it has not confirmed the allegation but is requesting an internal investigation.
Within a week, Panasonic’s general counsel responded, saying the corporation had already implemented social distancing measures and, because of the complaint, had “performed a COVID-19 Social Distancing Risk Assessment in connection with Gowning Rooms.”
The risk assessment led to signage posted in gowning rooms as well as floor and bench markings to maintain social distancing, Panasonic officials said. The corporation, which operates separately from Tesla, also began distributing masks to employees and has an attendant monitor and enforce social distancing in the gowning rooms during peak traffic times.
OSHA officials deemed the reply satisfactory and informed Panasonic the “file on this matter can be closed and no further action on this complaint is anticipated at this time.”
A nearly identical process played out with 15 other coronavirus-related complaints — reviewed by The Nevada Independent — that were investigated and closed. But dozens more cases remain open, and it’s likely that OSHA will receive more complaints in the coming weeks.
For instance, there were at least four coronavirus-related Tesla cases filed in the last week of March. Tesla did not respond to two requests for comment. But it has also implemented social distancing, temperature screenings and other measures, according to a document shared by the company at a board meeting for the Economic Development Authority of Western Nevada.
The open cases cut across multiple industries, and Lankford said OSHA is sharing its duties with other relevant agencies. When complaints are filed in a health care setting, it is working with local health districts and the Department of Health and Human Services.
On April 14, OSHA released further guidelines for essential businesses.
Realities on the ground
In some cases, organizations are restrained by the same forces that are affecting the whole nation, including a shortage of materials and general anxiety about the coronavirus, given its ability to spread quietly and widely. This was true in several health care-related complaints.
A Henderson Hospital employee, for instance, complained about a lack of N95 masks. The hospital disputed that allegation. And a St. Mary’s Regional Medical Center employee alleged the hospital didn’t inform staff about a patient with COVID-19 symptoms. A facilities director at the Reno hospital told OSHA “the patient was directed to enter the facility through our dedicated respiratory illness tent which leads to a negative pressure triage room.”
More complaints about face masks, or lack thereof, rolled in from employees at Summerlin Medical Center and Renown Regional Medical Center. OSHA closed those cases as well.
Renown’s safety officer told OSHA the hospital is making sure employees have the “appropriate” personal protective equipment, but she didn’t gloss over the difficulties arising from the national shortage.
“During the current COVID-19 pandemic, there have been challenges nationwide obtaining Personal Protective Equipment (PPE), particularly N95 respirators,” Tammy Oliver, an emergency preparedness and safety officer for Renown Health, wrote to OSHA. “During this shortage, Renown Health is following the extended use guidelines provided by the CDC.”
The workplace safety agency also fielded coronavirus-related complaints regarding FedEx and the Nevada Department of Corrections. On March 23, a FedEx complainant said employees were working within six feet of each other at a Sparks location, thus not meeting social distancing guidelines.
FedEx officials said workers had been briefed about safety precautions prior to the complaint, but facility managers addressed the allegations with employees during pre-work meetings later in March. They also took a number of other steps, including limiting the number of people in break rooms, taping a six-foot radius around time clocks and propping open doors to reduce hand contact, according to their reply letter to OSHA. The regulatory agency closed the case.
An NDOC employee, on the same day, filed a complaint alleging the Warm Springs Correctional Facility wasn’t providing correctional officers with PPE or doing enough to protect workers should a COVID-19 case appear within the facility. The complaint triggered a series of correspondence between prison officials and OSHA investigators. One OSHA employee included this comment in an email to NDOC officials requesting additional information:
“I assume there are frequent requirements for officers to come within six feet of prisoners, so I can fully understand their concerns and their families concerns, especially with other prisons identifying cases of this illness recently, and today’s news article about a ‘perfectly healthy’ father of six in Texas who just died from COVID-19 related complications.”
Ultimately, OSHA closed this case, tool.
NDOC officials told The Nevada Independent that the department’s executive team as well as medical and human resources staff have been reviewing all employee inquiries and have implemented “forward-thinking protocols,” such as suspending vistations, screening employees for virus symptoms and producing their own hand sanitizer, masks and gowns.
“NDOC works closely with public health officials on its COVID-19 response, which is to detect and rapidly contain introductions of the virus,” prison officials wrote in a statement. “Also, NDOC’s mission is to improve public safety by ensuring a safe and humane environment that incorporates proven rehabilitation initiatives that prepare individuals for successful reintegration into our communities. Our staff are professionals who understand the important nature of their work.”
As of Saturday morning, April 28, NDOC had reported six COVID-19 cases among staff members and none among inmates.
Not all of the OSHA complaints pertained to protection gear or distancing measures. At least one centered on what goes on outside work. An employee from Gale Building Products, an insulation contractor in Sparks, raised a concern about the company bringing in workers from the Bay Area, which is one of California’s regions most hard-hit by the coronavirus.
“We are not a life-sustaining business, and at this point it seems we are doing more endangering than anything,” the complainant wrote OSHA.
A branch manager for Gale Building Products disputed that characterization.
“As to the allegation of ‘quarantined’ workers from the Bay Area (CA) being brought over to work; we have a few union workforce employees that do live and typically work in CA,” company officials wrote in their response letter. “None of those employees are people under quarantine.”
The branch manager also emphasized the economic reality that has affected so many workers, even essential workers: “In an effort to keep our employees working as long as possible, tradesman working projects that had been shut down were offered work at our location. None of our employees are under quarantine at this time and none would be allowed to work if they began to show symptoms related to the COVID-19 virus regardless of where they live.”
The company included a bulleted list of what it called “COVID19 Precautions.”
Like the other closed cases, it was enough to satisfy OSHA. The safety agency issued its standard response letter, closing the case with an opportunity for the complainant to review it.
“We appreciate your prompt response to these allegations, and your interest in safety and health of your employees,” OSHA officials wrote. “Please feel free to contact this office if we can be of additional assistance to you.”
Post-coronavirus workplace safety
While COVID-19 has renewed dialogue about workplace safety, it’s not necessarily indicative of a surge in complaints. The virus has shuttered many businesses, lowering employment levels nationwide.
“There’s simply not that many workers to complain,” said Jim Thornton, chair of the governmental affairs committee for the American Society of Safety Professionals.
By and large, Thornton expects most workplaces will try to abide by OSHA and Centers for Disease Control and Prevention guidelines. The fast-spreading nature of the virus, he said, has made it obvious doing so is in the best interest of both employers and employees.
“I believe that most employers out there want to do the right thing,” he said. “They want to provide their employees a safe and healthy work environment.”
For those that don’t, that’s where OSHA comes into play. Thornton, a certified safety professional and certified industrial hygienist, said the safety agency needs to intervene and issue citations when necessary and continue building on guidance it has already issued.
Thornton called the pandemic’s effect on the occupational health and safety sphere “remarkable” and unlike anything he has seen in his 40-year career. But he offered this potential upside: Industries traditionally focused on mechanical and physical dangers will likely come away with a heightened sensitivity to a hidden hazard — germs.
Do large in-person meetings need to occur? Or would a videoconference suffice? And how often are high-touch surfaces like elevator buttons, doorknobs, keyboards and copiers being cleaned?
“I think we should really get the most good out of this,” he said. “I know it’s a bad thing. People are dying and suffering, and the economy is tanking. I know all that. But shame on us if we don’t all learn from it.”
The Nevada Independent is a 501(c)3 nonprofit news organization. The following people or entities mentioned in this article are financial supporters: Bldg & Const Trades Council of No. NV. – $2,045.3; and Steve Sisolak – $3,200.
Heather Ashbridge, who started with Nevada State Development Corporation in 2008, previously served in several roles with the organization, including assistant vice president and loan officer. She is based in NSDC’s Reno office.