In April, a worker at Pilgrim’s Pride poultry processing plant in Sanford called workplace safety regulators to complain that the plant wasn’t notifying employees when other staffers tested positive for the coronavirus.
A few weeks later, a worker at a Smithfield Foods pork plant in Tar Heel called to report that the plant wouldn’t allow workers to wear masks.
In early July, a worker at Tyson Farms in Monroe reported that the meatpacking company had “reinstituted the point system for absences” making “employees feel that they are being forced to work, even when they feel sick.”
Since the outbreak of the novel coronavirus, state and federal regulators have received dozens of calls and emails from workers in meat-packing plants across North Carolina who were concerned that these facilities were putting workers at risk.
The N.C. Department of Labor, the agency charged with investigating most workplace health and safety complaints, has found no safety violations at any of the plants and issued no citations or penalties. That’s despite repeated complaints raising the same issues – lack of social distancing, insufficient personal protective equipment and workers being forced to work even when they’re sick.
The department has received 75 complaints and referrals related to COVID-19 and the meat packing industry through July 15. None have prompted a site visit, according to Scott Mabry, assistant deputy commissioner at the N.C. DOL.
To some experts and advocates, that means regulators aren’t doing enough to keep workers safe.
Workplace safety regulators at the federal level and in most states including North Carolina aren't doing enough to enforce COVID-19-related precautions in meat-processing facilities or set regulatory mandates, said Matthew Johnson, assistant professor of economics at the Duke University Sanford School of Public Policy.
"This inaction is remarkable given that COVID represents the largest occupational safety and health crisis of (at least) the last century," Johnson said in an email.
A site visit would be prompted if an employer failed to provide DOL with an “adequate response” to a complaint inquiry, Mabry said. Although he said follow-up complaints would prompt the agency to re-examine an employer, “so far, the responses have been adequate.”
“When we get a complaint, if the answer is adequate, we take them at their word for it, and deem it to be closed unless we get further information or some lack of information in order to be able to go into a site,” Mabry said. “I have to believe that you’re telling me the truth.”
Some complaints still pending
Mabry said the Department of Labor deemed 32 of the 75 complaints by meat-packing workers invalid. Of 43 complaints that regulators considered valid, 38 have since been marked “closed” by the federal Occupational Safety and Health Administration.
The number of complaints about meat processing plants is higher than any other single industry in the state, making up 6.6% of all valid complaints since the start of the pandemic, despite these workers making up less than 1% of North Carolina’s workforce in May 2019.
Mabry noted that as the Centers for Disease Control and Prevention has increasingly emphasized the necessity of masks and social distancing to slow the spread of COVID-19, his department’s definition of a “valid” complaint has expanded. However, he said the DOL did not reopen every complaint that its regulators previously marked as invalid to reevaluate it in light of new guidance.
Five complaints from workers in meat processing plants remain open as of July 19. According to Mabry, some of these involve deaths of workers connected to COVID-19.
In response to questions about the complaint at its Tar Heel plant, a spokesperson for Smithfield said the company has spent “tens of millions of dollars” on personal protective equipment, boosted pay and expanded health and paid-leave benefits for its workers.
Tyson, in a statement for this story, said the company has encouraged its workers to stay home if they’re feeling ill.
“Like most businesses, we have an attendance policy that encourages people to come to work, however, we continue to tell our team members to stay home if they have symptoms of the COVID-19 or have tested positive for the virus. They’re paid for their time away,” a Tyson spokesman said.
Representatives for a meatpacking trade group as well as several other companies, including Mountaire and Pilgrim’s Pride, did not respond to requests for comment for this story.
Labor Commissioner Cherie Berry has said in the past that the DOL prioritizes relationships with industries and has avoided burdening them with regulations.
“You start adding (regulations) up, adding them up, and pretty soon, the pile is so high, that it’s very hard to climb over them to be able to do what you want to do,” Berry told The News & Observer in a 2015 interview.
As cases spiked in elderly care facilities in April, Gov. Roy Cooper took action to require nursing home employees to wear face masks, undergo screening for coronavirus symptoms at the beginning of every shift, monitor residents at least daily for symptoms, and notify health officials of any confirmed or suspected case of COVID-19 in the facility. Even with these measures, outbreaks have continued to pop up in nursing homes across the state.
The state Department of Health and Human Services in Cooper’s administration, which has broad regulatory authority over industries like nursing homes and child care centers, has said it has very little authority over meat processors, where the pandemic has also taken hold with virulence.
Cooper did, however, specifically name the industry in the statewide mask mandate ordered June 24.
Meat processing facilities continue to be vectors of spread
Data on the cases the state has learned about, provided by DHHS on Friday, shows there have been 3,234 confirmed cases of COVID-19 in 37 “clusters” in the meat processing industry since the beginning of the pandemic. That’s a nearly 150% increase in reported cases from mid-May. There were 27 known active clusters at meat processing facilities in 20 counties on Friday.
Lack of regulation leaves workers more vulnerable to infection, experts say, and food processing workers in particular have been some of those hardest hit by the coronavirus pandemic. President Donald Trump in April invoked the Defense Production Act to keep these plants open, citing the need to maintain food supply during the pandemic.
The effects of these outbreaks radiate far beyond the plants – and they are contributing to the strain on hospitals dozens of miles away.
Dr. David Wohl, an infectious disease doctor at UNC-Chapel Hill, saw a dramatic increase in recent months in patients from the counties where many meat processing plants are located. Many of the patients he sees work in the meat-packing industry.
“If they don’t work in these particular industries, they work in associated industries, or they live with somebody who does,” he said. “But when we’re talking about communities, we’re connected.
“So, if there’s more community spread due to an occupational hazard and you go to a store to buy food, the person you’re interacting with behind the counter now has a higher risk. So it’s just a ripple effect.”
Overlapping jurisdictions create regulatory gray area
Several state regulatory agencies say they have limited authority to track coronavirus cases among workers or to enforce worker protections.
Although inspections by the North Carolina Department of Agriculture & Consumer Services includes animals and food products, “worker safety would most likely fall under OSHA,” said Heather Overton, a spokesperson for NCDA&CS.
Natalie Bouchard, a spokesperson for the state Department of Labor, said that DHHS is responsible for tracking COVID-19 data and that DHHS has shared “limited data” with the DOL’s Occupational Safety and Health office.
The state’s Occupational Safety and Health office published health and safety guidelines for food-processing facilities in April. The guidelines include no mention of reporting cases to any state agency. The office has the authority to issue citations and penalties to employers that fail to comply with these guidelines.
But Bouchard wrote that, “Unless there has been a reported case of COVID-19 at a plant, a fatality from COVID-19, or a complaint specifically related to COVID-19, OSH has no authority to enter a plant to access any safety and health-related data maintained by an employer.”
The federal OSHA has issued only one citation nationwide, a case in Virginia, in response to more than 4,000 coronavirus-related complaints, The Washington Post reported in June.
Deborah Berkowitz, a former senior policy adviser for OSHA and now worker safety and health program director at the National Law Employment Project, told NPR this month that OSHA on the federal level closed around 12,000 worker complaints out of 18,000 complaints to state OSHA departments.
In one case, “OSHA simply sent a letter to the employer and said, you have to investigate yourself; we don’t have any real specific requirements,” Berkowitz told NPR. “And then the employer would write back, you know, we’re doing what we can. And OSHA closed the case.”
“There are some overlapping jurisdictions and overlapping authority, and most of them could probably do more than they’re doing,” said Clermont Ripley, a senior staff attorney at the North Carolina Justice Center, a left-leaning research and advocacy organization. “To just say ‘no, it’s someone else’s job’ is just being afraid to take the necessary steps to protect workers because they fear some sort of political backlash.”
In North Carolina, meat-processing is a $9 billion industry. It’s also made up of some of the largest political donors in the state. The chairman of Mountaire Farms, Ronald Cameron, donated more than $1.2 million to political candidates and committees in North Carolina since 2003, state campaign finance records show.
His first contribution, the records show, was a $500 donation to Berry.
Now in her fifth term, Berry has used a light hand to enforce regulations while accepting generous donations with the other. Cameron donated $10,000 to Berry’s reelection campaign in 2016.
In 2008, at least half of Berry’s contributions for her re-election campaign came from executives and managers of companies that had been inspected by her department, according to reporting at the time by The Charlotte Observer. The Observer found that these contributors got larger-than-average fine reductions for workplace safety violations: Fines on companies that had contributed were cut by more than 70%, while penalties overall were cut by 42%.
Workers’ rights advocates say that the NC OSH’s failure to protect workers from COVID follows a consistent pattern of the agency shirking its responsibilities under Berry.
According to a report by the NC Justice Center, NCDOL issues far fewer of the most serious violations than the national average and the penalties for violations are far lower than those levied against companies in many other states.
The state’s death rate per 100,000 workers reached 3.9 in 2017, the highest since 2008 and 21st worst in the nation, according to data from the Bureau of Labor Statistics. The rate declined slightly to 3.8 in 2018.
Berry is not running for re-election. Democrat Jessica Holmes, a Wake County commissioner, and Rep. Josh Dobson, R-McDowell, will compete to replace her in November.
In May, Republican state legislators proposed a bill that would give grants to meat processors to increase production by hiring more people and making facility improvements. A provision requiring worker protections as criteria for the grant was added, but the bill stalled at the end of the legislative session.
A more limited version of the legislation was passed as part of a larger CARES Act funding bill instead, but with no provision for protections.
Advocates: Regulators should do more
In a May 8 letter, the North Carolina Farmworker Advocacy Network, North Carolina AFL-CIO, NC Justice Center, El Vinculo Hispano/Hispanic Liaison, and others called on Cooper to require that meat processing plants provide workers with paid sick leave, institute sanitation and safety protocols, and shut down plants when there is confirmed COVID-19 exposure.
“Simply put, NC poultry workers are afraid to be at work now because they fear getting sick and getting members of their families and communities sick. They face an impossible choice: between losing their income or risking their lives,” the groups wrote.
The groups also noted that these workers – many of whom are immigrants who are in the country without legal authorization – are particularly vulnerable because of their close proximity on the production lines, infrequent breaks and lack of access to PPE.
According to the NC Justice Center, the groups have yet to receive any formal response to the letter.
One complicating factor, according to Cohen, is that the Cooper administration doesn't have authority to gradually escalate punishments for noncompliance. Instead, any order that covers meat processing facilities would automatically fall under a criminal statute.
“The tools overall from the executive order are pretty blunt. And that is challenging here,” said Cohen. “So we are trying to use the kinds of authority that are afforded to us.”
The legislature could have afforded the executive branch more oversight, but that seemed to be a non-starter in this past legislative session, she said.
"Most of last session, folks were trying to take away our authority, not give us more authority," said Cohen.
"I haven't seen anyone in that collaborative spirit to say, 'How do we get to executive powers that meet the moment?'" she said.
That's why she said DHHS and local health departments have tried to stay in contact with meat processing plants to stem the spread of the virus.
"How do we work with these companies? And try to do it collaboratively," she said. "Actually, us working with you is going to help keep your plants open, protect your workers; it's a win-win. Let's all kind of do this together. We'll help you with protective equipment. We'll help you with the protocols."
Some other states have implemented stricter oversight. Virginia Occupational Safety and Health, for example, passed new regulations specifically to address COVID-19 in workplaces.
Berkowitz said in an interview with NC Watchdog Reporting Network that the DOL could be doing far more to protect workers.
“The state has its own OSHA agency and that provides them the ability to publish standards and requirements that are more protective than federal OSHA,” she said, noting that only half of states have their own OSHA, North Carolina being one of them.
“Federal standards are often just the minimum and states can always do better when they have their own OSHA. But North Carolina’s has not done that.”
This story was jointly reported and edited by Ames Alexander of The Charlotte Observer; Sophie Kasakove, Aaron Sánchez-Guerra, Lucille Sherman, Jane Elizabeth and Jordan Schrader of The News & Observer; Nick Ochsner of WBTV; Emily Featherston of WECT; Tyler Dukes of WRAL; Jason deBruyn and Mitchell Northam of WUNC; and Frank Taylor of Carolina Public Press.