Virginia Created Fines for Workplace COVID-19 Violations, but Few Employers Paid Them
An exclusive analysis by the Virginia Center for Investigative Journalism of federal and state workplace safety data found increasing complaints, decreasing inspections during pandemic.
By Jeff South ~ Virginia Center for Investigative Journalism
Forced to buy their own face masks and serve customers who refused to wear one. Kept in the dark about co-workers who died of COVID-19 and ordered to work shoulder to shoulder with others who tested positive. Threatened with disciplinary action if they told government inspectors or the public that an employee had contracted the coronavirus.
Those are among more than 1,450 “valid complaints” that Virginia workers have lodged against their employers’ response to COVID-19, according to the federal Occupational Safety and Health Administration.
“Employees are told this epidemic situation is no big deal, don't waste paper towels or wash hands too frequently, and employees do not have to wear masks,” a machine shop worker said in a phone call last summer to workplace inspectors.
An employee at a financial planning firm said in an email complaint in January, “Management does not take COVID-19 seriously and feels face coverings aren't needed.”
“The employer is threatening employees with disciplinary action (write up and/or termination) for calling in sick with COVID-19 symptoms,” a restaurant worker told the complaint hotline.
An analysis of federal and state worker safety records by the Virginia Center for Investigative Journalism found a dramatic increase in workforce complaints, coupled with a steep decline in inspections since the coronavirus pandemic began in March 2020.
Workers and a federal watchdog say the lack of adequate oversight has left employees in front-line jobs at a higher risk for infection. The virus has taken the lives of more than 11,600 Virginians.
Despite employees’ immediate alarm for their workplace safety as the pandemic spread, most companies were directed to correct problems voluntarily, without an inspection. State penalties were rare: Fines paid by companies found violating COVID-19 safety rules have averaged about $2,750.
Moreover, OSHA, which monitors federal government workplaces in Virginia, did not cite any employers in the state until June 2021, according to federal records. Since then, the data shows, OSHA has cited three workplaces in Virginia and fined one for COVID-related violations. Virginia has about 140,000 federal civilian employees — more than Washington, D.C., and every state except California. An audit in February found the agency’s decrease in inspections during the pandemic likely led to higher risks for workers.
Some advocates for workers’ rights say they are not surprised by the prevalence of COVID-19 complaints coupled with the paucity of workplace fines. Adam Ryan, a co-founder of the group New River Workers Power, said employers and government officials may express concerns for the health of employees, but their actions tell a different story.
“None of them are really doing anything on behalf of workers,” said Ryan, who works for a big-box retailer near Roanoke. “It’s a lot of just showboating and trying to have good PR rather than any effective regulations.”
Since the start of the pandemic, only seven states have logged more complaints than Virginia that employers failed to protect workers against the coronavirus, the OSHA data showed.
Largely because of workers’ concerns about COVID-19, the Virginia Department of Labor and Industry received a total of 1,856 workplace complaints in 2020, according to Jennifer Rose, who oversees DOLI’s efforts to help employers comply with safety and health standards. That represented an 83% increase from the previous year.
At the same time, the pandemic made it more difficult and less likely for government officials to inspect workplaces. Rose said DOLI’s Virginia Occupational Safety and Health program, which has 44 compliance officers, performed 1,668 inspections last year — 24% fewer than in 2019.
VOSH has issued citations alleging that about 70 employers broke COVID-related health rules. But employers haven’t paid much of a price for such violations.
As of Aug. 13, only about 25 of those employers have paid fines for coronavirus-related violations, records indicate. In 24 cases, including at least two instances in which officials said workers died from COVID-19, DOLI did not impose a financial penalty or dropped the fine during negotiations with employers. In other cases that have been concluded, fines on average were reduced by more than one-third.
Virginia Was First to Set COVID-19 Rules at Work
In certain respects, Virginia was ahead of the curve in requiring employers to protect workers against the novel coronavirus.
In July 2020, DOLI’s Safety and Health Codes Board approved an emergency temporary standard on preventing COVID-19, mandating personal protective equipment (PPE), sanitation, social distancing and other precautions in the workplace. Virginia was the first state to adopt such measures; more than a dozen other states followed suit.
Virginia officials said they took that step because their federal counterparts at OSHA had not issued rules specific to the coronavirus.
“Workers should not have to sacrifice their health and safety to earn a living, especially during an ongoing global pandemic,” Gov. Ralph Northam said in announcing the temporary standards.
“In the face of federal inaction, Virginia has stepped up to protect workers from COVID-19, creating the nation’s first enforceable workplace safety requirements. Keeping Virginians safe at work is not only a critical part of stopping the spread of this virus, it’s key to our economic recovery and it’s the right thing to do.”
On Jan. 27, Virginia’s COVID-19 workplace safety and health rules became permanent.
“These scientifically based standards will help keep Virginia’s workers and their families safe during the COVID-19 pandemic,” DOLI Commissioner Ray Davenport, who oversees the department, said at the time.
The Virginia AFL-CIO worked with DOLI in drafting the rules.
“Finally, the voices of workers have not just been heard, but they have been listened to, acted upon and protected,” said Doris Crouse-Mays, president of the group, which represents 330,000 union members in the state.
In announcing the permanent standards, Northam’s office said DOLI has been working with employers to resolve complaints and achieve compliance. The governor’s news release said DOLI had cited 27 employers in COVID-related cases.
Citations Don’t Necessarily Mean Fines
Since Northam’s announcement in January, DOLI has cited more employers. As of Aug. 13, according to records from OSHA and VOSH, the state has cited 67 employers for about 145 violations after COVID-related inspections.
The cited workplaces included 12 nursing homes, three hospitals and six other health-care service providers, as well as government offices, retail stores and sundry businesses. Two businesses — a pet store and a janitorial service — each have been cited twice.
Forty-nine of the cases have been closed. The average fine: $2,749.
In their defense, employers faced a host of difficulties protecting workers from the coronavirus, including supply-chain disruptions that caused “widespread shortages” of PPE, according to a government report. Moreover, epidemiologists say that it’s difficult to pinpoint where a person contracts the virus and that determining the source of an infection is often a challenge for health officials.
Just because a worker has contracted the virus does not prove the infection spread at the worker’s office or job site. It can be nearly impossible to identify the exact source of any given employee’s infection, or connect it with certainty to a workplace.
VOSH did not seek financial penalties against 17 employers in COVID-related cases.
For example, in March 2020, six employees at the Courtyard Arlington Crystal City hotel, near Ronald Reagan Washington National Airport, contracted COVID-19, according to OSHA. Two housekeepers were hospitalized, and two others died, the agency said. “No extraordinary incident occurred before their hospitalizations or fatalities.”
On June 1, 2020 — six weeks before Virginia adopted rules to control the coronavirus in the workplace — VOSH opened an investigation of the Courtyard hotel. Inspectors cited the facility for two violations involving a standard concerning bloodborne pathogens; however, the agency did not levy a fine.
Virginie Regent, the hotel’s general manager, said the violations “were unrelated to COVID-19 and were addressed to the satisfaction of the inspector.” She said the hotel follows all public health requirements and cooperates with inspections. “If any issue were ever noted, we would promptly take steps to address it.”
State officials counted the Courtyard case as COVID-related because the inspection was triggered by the coronavirus deaths, said Rose, the director of VOSH Cooperative Programs. She said the two violations “were unrelated [to the virus], as they were under the bloodborne pathogens standard, and not cited under our regulation for COVID.”
In three COVID-related cases, VOSH declined to impose a financial penalty even when inspectors found violations they described as serious.
In seven additional cases, VOSH initially sought fines of thousands of dollars but later dropped the penalties.
That is what happened with the Virginia Beach office of Kindred at Home, a home health care service. In May 2020, a Kindred nurse died after contracting the coronavirus from a patient, according to federal investigators. VOSH initially cited the company for three violations and imposed a $4,620 fine. But during a settlement, the agency deleted all of the violations and the penalty.
Gentiva Health Services, which operates Kindred at Home, did not respond to a request for comment.
In 23 other settlements, DOLI significantly reduced the fines.
For instance, state officials cited the Schewel Furniture Co. for a serious violation and levied a fine of more than $10,000 after a manager at its South Boston store died from COVID-19 in August. After contesting the citation, the company settled the case in June for $3,000. The company did not respond to a request for comment.
In the same way, VOSH cut in half the fines for a rental car company at Reagan National Airport, a beauty salon in Fairfax, a chiropractor in Charlottesville, a farm in Southwest Virginia and a body shop in the Shenandoah Valley. Penalties for 16 other businesses were reduced at least 30%, according to a VCIJ analysis.
Rose said the penalty amounts were justified based on the individual circumstances of each case.
“Penalties associated with citations are based on several factors, including severity of the hazard, probability of injury or illness, size of the employer, and the employer's history with VOSH,” she said.
The Federal Government Has Fined One Virginia Employer
DOLI regulates all private-sector and state- and local-government workplaces in Virginia under a plan approved by the federal Occupational Safety and Health Administration. OSHA regulates all federal workplaces, U.S. Postal Service operations, military bases and military contractors in Virginia.
At the start of the pandemic, OSHA said its existing regulations were adequate to address the coronavirus. Those rules cover sanitation and respiratory protections and also require employers to provide “a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.”
After President Joseph Biden took office, OSHA put greater emphasis on preventing the spread of COVID-19 in the workplace. On June 10, 2021, OSHA announced an emergency temporary standard, similar to Virginia’s rules, to protect workers from the coronavirus.
Nationwide, from July 2020 through Aug. 12, OSHA issued about 600 citations, mostly against private businesses, according to data provided by the agency. (In 28 states, OSHA inspects private workplaces; the other states, including Virginia, are authorized to conduct their own private-workplace inspections.)
OSHA cited the Defense Commissary Agency operations in Norfolk on June 8 and in Virginia Beach on July 23 for violating COVID-related standards and exposing employees to health risks. The agency did not fine the commissaries, which sell food and other products to military personnel and their families.
OSHA also cited Fairlead, a ship repair company in Portsmouth, on June 28. Inspectors said the federal contractor committed an “other than serious” violation involving recordkeeping of coronavirus cases. Fairlead paid a $1,658 fine.
Like DOLI, OSHA saw a surge in workplace complaints yet conducted fewer workplace inspections during the COVID-19 pandemic, according to the inspector general for the U.S. Department of Labor.
“Compared to a similar period in 2019, OSHA received 15 percent more complaints in 2020, but performed 50 percent fewer inspections,” the inspector general’s office said in a report issued in February. “As a result, there is an increased risk that OSHA is not providing the level of protection that workers need at various job sites.”
As part of its audit, the inspector general’s office looked at how many workplace inspections for COVID-19 had been conducted in each state from Feb. 1 to Oct. 26 of 2020. During that time period, Virginia carried out 13 coronavirus-related inspections, the report said. In contrast, Minnesota had done 41, New Jersey and Oregon about 70, and Nevada 166. (As of July 2021, VOSH has conducted more than 200 COVID-related inspections, Rose said.)
Restaurants, Offices, Factories, Hospitals and a Strip Club
Virginia workers can file a workplace safety or health complaint online or by phone. If it involves a federal employer, the complaint goes to OSHA; otherwise, it goes to VOSH. Officials at OSHA or VOSH then determine whether the complaint is valid.
To be valid, “there must be reasonable grounds to believe that either a violation of the OSH Act or OSHA standard that exposes employees to physical harm exists, or death or serious injury exists,” said Kimberly Darby, a public information officer for the U.S. Department of Labor.
The appropriate agency then contacts the employer. If there is a “satisfactory response from the employer,” the case can be closed, Darby said. If the employer’s response is unsatisfactory, she said, the agency will open an inspection.
Since the start of the pandemic, there have been more than 60,600 COVID-related valid complaints in workplaces nationwide, according to OSHA data through July 30.
Workers have filed 1,459 valid complaints against Virginia employers, alleging that more than 74,000 employees were put at risk for the coronavirus, the data showed. Virginia registered more complaints than Pennsylvania, Texas and New York.
The complaints reflected the arc of the virus as it spread around the world.
On Feb. 10, 2020 — 11 days after the World Health Organization declared the coronavirus a global health emergency — an employee at the Defense Technology Security Administration (DTSA) in Alexandria filed Virginia’s first COVID-related workplace complaint. The employee noted that three DTSA workers were returning from Singapore, where there had been dozens of COVID-19 cases, and complained that there were no plans to quarantine those individuals.
“The entire DTSA office and their families are at a severe health risk if travelers are not separated from employees,” the complaint said.
On March 14, 2020, state officials reported that the first Virginian had died of COVID-19. Soon, COVID-19 workplace complaints took off. Over the following year, the number of complaints averaged more than 100 per month. They tapered off this spring — there were 40 complaints in April, 16 in May and fewer than 10 since then — as government authorities rolled out vaccines and eased pandemic restrictions.
The daily peak for complaints was 22 on March 31, 2020.
“Not following social distancing measures. People coughing and sneezing on everything. No masks provided. No 6-feet spacing,” a factory worker in Southside Virginia reported that morning.
Since the pandemic hit, complaints have been filed against employers in 117 of Virginia’s 133 counties and cities, with the most in Fairfax County (about 100), Henrico County and the city of Richmond (more than 70), and Chesterfield County and Lynchburg (more than 60), according to VCIJ’s analysis of complaint data.
There have been about 100 complaints against restaurants, 45 against hospitals and 75 against nursing homes, assisted living centers and other residential care facilities.
More than 600 complaints said employers were not providing adequate masks for workers or requiring people in the workplace to wear them.
“Employees who are issued N95 facemasks are required to use the same mask for months,” a hospital staff member said. “Masks are periodically sent for sanitation but the same mask is used indefinitely even when working with known COVID-19 patients.”
About 400 complaints cited a lack of social distancing. “Employer is not maintaining ten feet of physical distance between performers and patrons due to lap dances in the back room,” a worker at a “gentlemen’s club” reported.
In at least 200 instances, VCIJ found, employees said they were not told about colleagues who tested positive for the coronavirus.
“One of my coworkers had COVID-19. We only found out today when he came back to work from quarantine. The department hid it from us,” an employee of Newport News Shipbuilding told OSHA in an email last summer. The shipyard declined to comment.
Numerous workers said their employers had failed to report COVID outbreaks to state officials. Many employees said they felt pressured to keep coronavirus cases a secret.
“A housekeeping employee is currently on a ventilator diagnosed with COVID-19 and two patients have tested positive for COVID-19,” a worker at a nursing home said. But the complainant added, “Employees are told they would face disciplinary action if they told anyone of the COVID-19 positive employee.”
In 12 complaints, employees said co-workers had died of the coronavirus.
Not surprisingly, some of Virginia’s largest employers have drawn the most complaints. There have been 26 complaints against Walmart operations, followed by 13 against Lowe’s Home Improvement stores and against UPS.
In January, for example, a worker at the Walmart store in Lexington said supervisors had “told employees to lie to health department officials who've investigated claims.” The complaint said that if employees arrived for work with a fever, they were told to “go stand in cold spots to reduce fevers long enough to get an accurate (lower) temp reading during the pre-work assessment.”
Scott Pope, Walmart’s director of national media relations, noted that all of the complaints involving the company’s operations in Virginia “were properly investigated and didn’t result in citations.”
Pope said Walmart has 149 retail facilities and nearly 45,000 employees in the commonwealth, “so the number of complaints is very small when applied to an employer of our size.” He said the company has been a leader in protecting its workers against COVID-19.
Matthew O’Connor, senior manager of media relations for UPS, said his company also has taken steps to prevent the spread of the coronavirus. “The safety and health of our employees is extremely important as we care about each other, our families and the communities we serve, where we also live and work,” O’Connor said.
Lowe’s did not respond to a request for comment, but that company also implemented policies early in the pandemic to protect employees and customers.
There have been more than 150 complaints against governmental entities, including public schools and universities.
One of the first complaints, on March 16, 2020, came from an employee of the Virginia Department of Health — the state’s lead agency in addressing the coronavirus. The worker said the agency had not provided personal protective equipment to inspectors of health care facilities.
“The surveyors are reliant upon the facilities they are inspecting for PPE. The facilities do not always have adequate supplies/PPE or even hand soap,” the online complaint said.
Of the 1,459 COVID-related workplace complaints in Virginia, OSHA handled 49 — all involving the U.S. Postal Service, federal agencies, military installations such as Quantico and federal contractors like Newport News Shipbuilding.
Of the 1,410 complaints handled by VOSH, state inspectors investigated about 95. At least 30 of those employers subsequently were cited for COVID-related violations.
But the vast majority of complaints were closed without an inspection. Instead, VOSH contacted the employer and got the problem resolved, Rose said.
“When an adequate response is received from the employer and the complainant does not dispute or object to the response,” she said, “the complaint is closed.”