Scores of worker Covid deaths not reported amid US regulator's lenient approach

Employers given broad discretion on whether to report worker deaths to Osha – and many have simply chosen not to

As Walter Veal cared for residents at the Ludeman developmental center in suburban Chicago, he saw the potential future of his grandson, who has autism.

So he took it on himself not just to bathe and feed the residents, which was part of the job, but also to cut their hair and barbecue for them on holidays.

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“They were his second family,” said his wife, Carlene Veal.

Even after Covid-19 struck in mid-March and cases began spreading through the government-run facility in Park Forest, Illinois, which serves nearly 350 adults with developmental disabilities, Walter was determined to go to work, Carlene said.

Staff members were struggling to acquire masks and other personal protective equipment at the time, many asking family members for donations and wearing rain ponchos sent by professional baseball teams.

All Walter had was a pair of gloves, Carlene said.

By mid-May, rumors of some sick residents and staffers had turned into 274 confirmed positive Covid tests, according to the Illinois department of human services Covid tracking site. On 16 May, Walter, 53, died of the virus. Three of his colleagues had already died, according to interviews with Ludeman workers, the deceased employees’ families and union officials.

State and federal laws say facilities like Ludeman are required to alert Occupational Safety and Health Administration officials about work-related employee deaths within eight hours of learning about the death. But facility officials did not deem the first staff death on 13 April work-related, so they did not report it. They made the same decision about the second and third deaths. And Walter’s.

It’s a pattern that’s emerged across the nation, according to a review by Guardian partner Kaiser Health News, of hundreds of worker deaths detailed by family members, colleagues and local, state and federal records.

Workplace safety regulators have taken a lenient stance toward employers during the pandemic, giving them broad discretion to decide internally whether to report worker deaths. As a result, scores of deaths were not reported to occupational safety officials from the earliest days of the pandemic through late October.

KHN examined more than 240 deaths of healthcare workers profiled for the Lost on the Frontline project and found that employers did not report more than one-third of them to a state or federal Osha office, many based on internal decisions that the deaths were not work-related – conclusions that were not independently reviewed.

Work-safety advocates say Osha investigations into staff deaths can help officials pinpoint problems before they endanger other employees as well as patients or residents. Yet, throughout the pandemic, healthcare staff deaths have steadily climbed. Thorough reviews could have also prompted the US Department of Labor, which oversees Osha, to urge the White House to address chronic protective gear shortages or sharpen guidance to help keep workers safe.

At Ludeman, the circumstances surrounding the worker death on 13 April might have shed light on the hazards facing Veal. But no state work safety officials showed up to inspect – because the department of human services, which operates Ludeman and employs the staff, said it did not report any of the four deaths there to Illinois Osha.

The department said “it could not determine the employees contracted Covid-19 at the workplace” – despite its being the site of one of the largest US outbreaks.

Facebook Twitter Pinterest Carlene Veal rests her hand on a photo she took of her husband Walter. Photograph: Taylor Glascock/Kaiser Health News

Osha inspectors monitor local news media and sometimes will open investigations even without an employer’s fatality report. Through 5 November, federal Osha offices issued 63 citations to facilities for failing to report a death. And when inspectors do show up, they often force improvements – requiring more protective equipment for workers and better training on how to use it, files reviewed by KHN show.

Still, many deaths receive little or no scrutiny from work-safety authorities. In California, public health officials have documented about 200 healthcare worker deaths. Yet the state’s Osha office received only 75 fatality reports at healthcare facilities through 26 October, Cal/Osha records show.

Nursing homes, which are under strict Medicare requirements, reported more than 1,000 staff deaths through mid-October, but only about 350 deaths of long-term care facility workers appear to have been reported to Osha, agency records show.

“It is so disrespectful of the agencies and the employers to shunt these cases aside and not do everything possible to investigate the exposures,” said Peg Seminario, a retired union health and safety director who co-authored a study on Osha oversight with scholars from Harvard’s TH Chan School of Public Health.

A Department of Labor spokesperson said in a statement that an employer must report a fatality within eight hours of knowing the employee died and after determining the cause of death was a work-related case of Covid-19.

Yet pinpointing exposure to an invisible virus can be difficult, with high rates of pre-symptomatic and asymptomatic transmission and spread of the virus just as prevalent inside a hospital Covid unit as out.

Those challenges, plus May guidance from Osha, gave employers latitude to decide behind closed doors whether to report a case. So it’s no surprise that cases are going unreported, said Eric Frumin, who has testified to Congress on worker safety and is health and safety director for Change to Win, a partnership of seven unions.

“Why would an employer report unless they feel for some reason they’re socially responsible?” Frumin said. “Nobody’s holding them to account.”

Osha’s guidance to employers offered pointers on how to decide whether a Covid death is work-related. It might be if a cluster of infections arose at one site, but it might not be if a worker had close contact with an infected person outside of work.

Ultimately, the memo says, if an employer can’t determine that a worker “more likely than not” got sick on the job, “the employer does not need to record that.”

In mid-March, the union that represented Paul Odighizuwa, a food service worker at Oregon Health & Science University, raised concerns with university management about the virus possibly spreading through the food and nutrition services department.

Workers there – those taking meal orders and preparing food – were unable to keep their distance from one another, said Michael Stewart, vice-president of the American Federation of State, County and Municipal Employees local 328, which represents about 7,000 workers at OHSU. Stewart said the union warned administrators they were endangering people’s lives.

Soon the virus tore through the department, Stewart said. At least 11 workers in food service got the virus, the union said. Odighizuwa, 61, a pillar of the local Nigerian community, died on 12 May.

OHSU did not report the death to the state’s Osha, saying it “was determined not to be work-related”, according to a statement from Tamara Hargens-Bradley, an OHSU spokesperson.

She said the determination was made “[b]ased on the information gathered by OHSU’s occupational health team”, but she declined to provide details, citing privacy issues.

Stewart condemned OHSU’s response. When there’s an outbreak in a department, he said, it should be presumed that’s where a worker caught the virus.

“We have to do better,” Stewart said. “We have to learn from this.”

Oasis Pavilion nursing and rehabilitation center in Casa Grande, Arizona, didn’t report the mid-June death of a certified nursing assistant, Mark Daugherty. Early that month, the facility filed its first public report on Covid cases to Medicare authorities: 23 residents and eight staff members had fallen ill. It was one of the largest outbreaks in the state. (Medicare requires nursing homes to report staff deaths each week in a process unrelated to Osha.)

But there was no Osha investigation into whether Daugherty got Covid at work or whether other workers were at risk.

“We don’t know where Mark might have contracted Covid-19 from, since the virus was widespread throughout the community at that time. Therefore there was no need to report to Osha or any other regulatory agencies,” Oasis Pavilion’s administrator, Kenneth Opara, wrote in an email to KHN.

Since then, 15 additional staffers have tested positive and the facility suspects a dozen more have had the virus, according to Medicare records.

If Oasis Pavilion needed another reason not to report Daugherty’s death, it might have had one. Osha requires notice of a death only within 30 days of a work-related incident. Daugherty, like many others, clung to life for weeks before he died.

That is one loophole – among others – in work-safety laws that experts say could use a second look in the time of Covid-19.

In addition, federal Osha rules don’t apply to about 8 million public employees. Only government workers in states with their own state OSHA agency are covered. In other words, in about half the country, if a government employee dies on the job – such as a nurse at a public hospital in Florida, or a paramedic at a fire department in Texas – there’s no requirement to report it and no one to look into it.

In mid-March, staff members at the Ludeman developmental center were desperate for PPE. The facility was running low on everything from gloves and gowns to hand sanitizer, according to interviews with current and former workers, families of deceased workers, and union officials.

Michelle Abernathy, 52, a newly appointed unit director, bought her own gloves at Costco. In late March, a resident on Abernathy’s unit showed symptoms, said her mom, Barbara Abernathy. Then Michelle developed a fever.

When she died on 13 April – the first known Ludeman staff member lost to the pandemic – the Illinois department of human services, which runs Ludeman, made no report to safety regulators. After seeing media reports, Illinois Osha sent the agency questions about Abernathy’s daily duties and working conditions. Based on DHS’s responses and subsequent phone calls, state Osha officials determined Abernathy’s death was “not work-related”.

Barbara doesn’t buy it. “Michelle was basically a hermit,” she said, going only from work to home. She couldn’t have gotten the virus anywhere else, she said. In response to Osha’s inquiry for evidence that the exposure was not related to her workplace, her employer wrote “n/a”, according to documents reviewed by KHN.

Two weeks after Abernathy’s death, two more employees died: Cephus Lee, 59, and Jose Veloz III, 52. Both worked in support services, boxing food and delivering it to the 40 buildings on campus. Their deaths were not reported to Illinois Osha.

Veloz was meticulous at home, having groceries delivered and wiping down each item before bringing it inside, said his son, Joseph Ricketts. But work was another story.

An April complaint to Illinois Osha warned, “Lives are endangered,” according to documents obtained by the Documenting Covid-19 project at the Brown Institute for Media Innovation and shared with KHN.

That’s how Rose Banks felt when managers insisted she go to work, even though she was sick and awaiting a test result, she said. After spending a full day at the facility, she said, she came home to a phone call saying her test was positive. She’s currently on medical leave.

As of mid-November, 164 staff members and 246 residents have tested positive, according to DHS figures.

DHS said it had implemented many protocols to mitigate the outbreak at Ludeman, working as quickly as possible based on what was known at the time. It has created an emergency staffing plan, identified negative-airflow spaces to isolate sick individuals and made “extensive efforts” to procure more PPE, and it is testing all staffers and residents regularly.

“We were deeply saddened to lose four colleagues who worked at Ludeman Developmental Center and succumbed to the virus,” the agency said in a statement. “We are committed to complying with and following all health and safety guidelines for Covid-19.”

But that does little to console the families of those who have died.

Carlene Veal said her husband, Walter, was tested at the facility in late April. But by the time he got the results weeks later, she said, he was already dying.

Carlene Veal can still picture the last time she saw Walter, whom she called her “superhero” for 35 years of marriage. He was lying on a gurney in their driveway with an oxygen mask on his face, she said. He pulled the mask down to say “I love you” one last time before the ambulance pulled away.

Shoshana Dubnow, Anna Sirianni, Melissa Bailey and Hannah Foote contributed reporting

KHN (Kaiser Health News) is a nonprofit news service covering health issues. It is an editorially independent program of KFF (Kaiser Family Foundation) that is not affiliated with Kaiser Permanente