California issued millions in COVID fines. Employers have paid almost none of them

Six months into the pandemic, California's workplace safety agency tried to send an ominous message about COVID-19 safety to business owners: "We're watching."

By April 2021, inspectors with California's Division of Occupational Safety and Health, better known as Cal-OSHA, had ordered roughly $4.6 million in fines for wrongdoing related to the COVID-19 in some 200 workplaces.

But behind the scenes at the state's workplace safety agency, California employers and their lawyers have filed an onslaught of appeals, delayed paying their fines and sought deals to pay next to nothing, a Sacramento Bee review of Cal-OSHA fines and payment data found.

Violations generally fell into three categories: failing to maintain proper safety and training plans, lacking protective equipment such as masks or plexiglass barriers, and blowing past deadlines to inform regulators of coronavirus deaths — if they did so at all.

"San Quentin prison is fined $421,880 over deadly COVID-19 conditions," one news headline from February read. "Local nursing home fined nearly $100,000 for coronavirus related workplace violations," said a television news report. "Foster Farms fined $174,275 after deadly COVID-19 outbreak in Merced County," declared one more.

More than a year since inspectors noted some of those violations, employers have paid only about 3% of the total charges, according to the financial data, which the state compiled in response to a Public Records Act request from The Bee.

The reason? Among all of the employers fined more than $10,000, four out of five of them have pushed back against their citations.

That effectively hit the pause button on any payment.

Worker advocates say bad actors faced no true consequences from the state of California for killing people or making them sick. Some have sued the employers. The lack of enforcement also allowed alleged wrongdoing to continue long after a violation was first reported, they say

"There's essentially just a rejection of responsibility that's deeper than we knew, and it's very problematic for California workers," said Stephen Knight, executive director of Worksafe, an employee-rights advocacy group.

By comparison, from 2015 to 2019 only about 8% of employers under federal OSHA's jurisdiction contested their citations, according to data the agency provided to The Bee. That does not include appeals from state-run workplace safety groups, like Cal-OSHA.

Analyses of federal OSHA data from Bloomberg News and Reuters found a growing number of employers — around half — were challenging their fines during the pandemic. That number appears to be higher in California, though delays in reporting make it difficult to compare the country's pandemic appeals to those under Cal-OSHA.

In California, some employers have claimed that employees did not contract COVID-19 on the job. Others contend that they couldn't provide masks or training because of limited supplies and California's fast-changing rules.

But critics say the soaring number of appeals amounts to employers shirking accountability.

The Bee's analysis buttresses farmworkers' and food-packing employees' contention that Cal-OSHA hasn't done enough to protect workers, said Ildi Carlisle-Cummins, director of the California Institute for Rural Studies, a Davis nonprofit that advocates for farmworkers.

She said the agency is known for imposing "very small, slap-on-the-wrist fines that don't change behavior" and simply doesn't have the means to improve workplace safety.

California's median COVID-19 fine amount was about $11,250 and went to a large grocery store chain as well as farm labor companies. The smallest was $300 to a senior living facility.

"Cal-OSHA has been understaffed, under-funded," she said. It's questionable whether "the agency has the capacity, the political will to enforce the law."

Earlier this year, The Bee reported how the state was failing to monitor where employees were getting sick while nursing home operators avoided scrutiny by overlooking requirements to report to state watchdogs when employees died of COVID-19.

Concerns about Cal-OSHA's functioning have only intensified. A state committee said health and safety enforcement in recent years has been "minimal to non-existent."

Gov. Gavin Newsom has called for a massive investment in staffing at the department, but hiring those positions will take months and has proved challenging in recent years, when staffing shortages have only intensified.

As of last week, there were about 100 jobs for the Department of Industrial Relations posted on the state's hiring website — including several for the legal unit that handles appeals.

"It's not controversial to acknowledge that the staffing crisis is totally exacerbating the failure of Cal-OSHA to fully keep workers safe in this crisis, that it's been above and beyond what we were ready for," said Knight, the worker rights advocate.

"Workers have paid a very high price, and that price is still being paid today."

The large number of appeals could have repercussions across the state.

When short-staffed inspectors have to spend more time preparing for hearings about the citations they write, that limits how thoroughly they can inspect dangerous workplaces, said Dr. David Michaels, an epidemiologist and professor at George Washington University who was previously OSHA's top administrator in the Obama administration.

An increase in employers automatically fighting their citations further strains the system.

"The problem is federal OSHA and Cal-OSHA are under-resourced," Michaels said. "They are weighed down by an outdated law that didn't predict these sort of shenanigans from employers and lawyers."

Records show 83% of employers appealed

Cal-OSHA first publicized COVID-19 violations on the first Friday in September 2020. In a news release, the workplace safety board announced it had fined 11 employers "for not protecting employees from COVID-19 exposure." The citations ran the gamut from a poultry processing facility in Los Angeles County to a farm labor contractor in Vacaville to a hospital in Berkeley.

"These are industries where workers have been disproportionately affected, and these citations are the first of many to be issued in the coming weeks and months," Doug Parker, Cal-OSHA's director at the time, said in a prepared statement that day.

The department announced three more waves of COVID-19 penalties by the end of the month.

Often, employers will correct the problem on the spot, according to inspection records. But not always. And if they challenge a citation, it can mean the alleged problem continues.

"With many months to get to a citation and many months on appeal, it can be a very long time before workers see any improvement on site," said Knight, the worker advocate.

The drumbeat of penalty announcements continued through winter and into spring.

In April, The Bee requested payment information about the 110 businesses that had been fined more than $10,000. The department turned over the spreadsheet at the end of May showing about 83% of employers had appealed their citations. Similar records the state posts publicly suggest about two-thirds of all employers with COVID-19 citations have appealed.

The Department of Industrial Relations, which houses Cal-OSHA, declined to make anyone available for an interview for this story. Officials did not respond to a detailed list of questions.

Experts said that focusing on fines doesn't tell the full story.

Research has shown that each well-publicized statement has the equivalent result of inspectors showing up in 210 different businesses — a deterrent effect that puts other employers on notice that they, too, could face fines.

"By issuing a large fine and a press release, OSHA gains compliance at work sites they haven't inspected," said Michaels, the former federal OSHA administrator. "So the fact that OSHA eventually reduces it is much less important."

Attorney Lisa Baiocchi, a senior associate at The Prince Firm in Santa Rosa who represents employers appealing their citations, said that while appeals were slow to start, they've become much more common. The reasons: The financial penalties for COVID-19 violations are higher than non-COVID penalties, and the types of citations are more severe and could linger on an employer's record for years.

Most claims are fast-tracked, and she said the alleged wrongdoing is almost always abated.

"As with any kind of litigation, there's always a back and forth between the employer and Cal-OSHA as far as trying to resolve the matter without going into a hearing," Baiocchi said.

"In the end," Baiocchi said, "I believe that the settlements that result from discussions between employers and Cal-OSHA are reflective of what the actual evidence is and what the defenses are in that case."

Critics aren't so sure. Fighting every appeal, often against well-heeled company lawyers, would become all-consuming, result in fewer inspections and ultimately harm workers, said Garrett Brown, a now-retired longtime inspector who has become a vocal watchdog of the department.

"They steamroll them through, which has a very negative effect on the functioning of Cal-OSHA enforcement," Brown said.

Officials end up triaging cases. Some get off easier than others. The whole system slows down.

"A pretty cold-blooded decision has to be made."

Kaiser, California's prisons face largest citations

Among the unpaid fines: 12 citations against Kaiser Permanente totaling $526,235. The fines involved hospitals and other medical facilities stretching from the Bay Area to the Inland Empire.

The single largest fine, $87,500, was imposed over numerous alleged violations at Kaiser's San Leandro hospital, including failure to properly train employees on the hazards of airborne coronavirus transmission and failure to notify Cal-OSHA about an employee who'd become seriously ill from COVID-19.

All told, Kaiser hasn't paid any of its 12 fines.

Cal-OSHA records show Kaiser has appealed nine of the citations, although Kaiser said in a statement that the organization is "in the process" of appealing all of them.

The statement defended the quality of Kaiser care during the pandemic. Many of the citations stemmed from allegations earlier in the pandemic when supply shortages abounded and public health guidance was ever-changing. The statement said it was "misleading to interpret these citations to indicate any ongoing serious infractions of current public health guidelines."

"Unequivocally, our medical centers are safe places to work and receive care," the statement said. "Cal-OSHA has changed its guidance several times .... Kaiser Permanente has updated its policies and procedures in accordance with these changes."

It's not just healthcare providers that have fines they don't think they should pay.

The California Department of Corrections and Rehabilitation hasn't paid more than $430,000 in fines issued in connection with violations at San Quentin and Avenal prisons.

The San Quentin citation, totaling $396,000, is being appealed. Among other things, the citation says San Quentin officials failed to report infections that sent five prison employees to the hospital last summer; failed to provide adequate cleaning supplies in employee restrooms and failed to provide gloves, face shields and other protective gear to employees coming into contact with incarcerated people who'd been exposed to the coronavirus.

The Avenal prison was fined $39,000 for, among other things, failing to test N-95 masks to make sure they fit employees properly.

Cal-OSHA issued the two citations for the prisons in February, just days after the state Office of Inspector General issued a scathing report accusing the corrections department of failing to prevent the spread of the disease while transferring nearly 200 medically vulnerable inmates to San Quentin and Corcoran State Prison.

Dana Simas, spokeswoman for the corrections department, said San Quentin has "made many improvements and already remedied several of the citations," which stemmed from inspections last summer. The prison equipped staff and inmates with N-95 masks, took steps to ensure that Cal-OSHA would be notified about illnesses to staff and updated its "aerosol transmissible diseases" control plan, she said.

Placerville bistro challenges Cal-OSHA

Apple Bistro, a cafe on Highway 50 near downtown Placerville, isn't a major employer like Kaiser or the state prison system. But the restaurant has been making plenty of noise after getting cited by the state's workplace inspectors.

Cal-OSHA fined Apple Bistro $108,000 in October for failing to require masks and failing to install acrylic screens at cash registers and between tables to prevent the spread of COVID.

Apple Bistro's owner did not stay quiet. In a video posted on its website, under a section of the site called "Say No to Tyranny," owner Jennette Waldow ripped the state agency for "walking on our rights, trespassing on our rights."

Around the time it got fined last fall, Apple Bistro plastered signs around the restaurant mocking and disparaging mask-wearing and the state's enforcement actions. "As free Americans we will not comply with unconstitutional medical or political mandates that violate our basic rights," one sign said.

Waldow didn't return a reporter's call seeking comment.

Apple Bistro is facing legal problems in El Dorado County as well. The restaurant has been fined $500 a day since last summer for violating the county's health ordinance — a penalty that now sits at more than $144,000, according to county spokeswoman Carla Hass. She said the unpaid fines have been referred to the county treasurer-tax collector "to enforce the obligation."

Hass said the county also suspended Apple Bistro's health permit after representatives of the restaurant failed to show at a court hearing.

The restaurant has continued to operate in defiance, she said. It's also joining the chorus of businesses challenging the workplace safety board.

On May 6, according to state records, Apple Bistro formally appealed Cal-OSHA's citation.

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