With federal regulators missing from the field and state leaders scrambling to manage the COVID-19 crisis, Massachusetts’ 351 overtaxed local boards of health were unwittingly thrust into a new role last year — overseers of workplace safety.
The challenge created by forcing that responsibility on the municipal agencies, some staffed with only one or two people, may have contributed to at least one chairman’s heart attack and highlighted the fragility of the workplace-safety landscape in Massachusetts.
“It’s brutal. It’s brutal. It’s off the charts,” said Michael R. Hugo, Government Affairs Liaison for the Massachusetts Association of Health Boards. “There is so much egregious behavior going on by businesses that nobody has time to do it all.”
But the Bay State’s crisis also provides a fresh glimpse into the perils caused by the U.S. Occupational Safety and Health Administration’s retreat from its duties in recent years, as states, labor unions, worker-advocacy organizations and other stakeholders tried to fill in the gaps.
OSHA’s absence put pressure on an unprepared and understaffed Massachusetts Department of Labor Standards to step in. But DLS, which oversees public-sector workers, was trying to manage statewide issues, working remotely and without enough inspectors. It couldn’t handle pandemic workplace-safety compliance on its own, according to interviews with more than a dozen state officials, health directors, and staff and worker-safety advocates.
Those twin failings reached a critical peak in May 2020, as Republican Gov. Charlie Baker prepared to allow some businesses to reopen after a two-month shutdown. Workplace-safety enforcement largely fell to local boards of health — already under resourced and grappling with scores of mandated duties — including inspecting school cafeterias, monitoring communicable diseases and ensuring a clean community water supply.
“It just became the theater of the absurd. They were just dumping onto the local health directors,” said Hopkinton Board of Health Director Shaun McAuliffe. “We didn’t have the time. We didn’t have the training and we had no one else to roll it down to. We were at the bottom of the hill.”
OSHA covers private-sector workers in Massachusetts. During the Trump administration, it was “asleep at the switch for the duration of the pandemic,” said Rick Claypool, a research director for Public Citizen, a consumer-rights advocacy group.
A collaboration by the Howard Center for Investigative Journalism at the University of Maryland, Boston University, the University of Arkansas and Stanford University found that the workers’ safety system is splintered and communication is muddled. As a result, there is little accountability for the failure of government watchdogs to keep workers safe from COVID-19.
The consortium also found that oversight of worker safety in the U.S. rarely results in meaningful consequences for companies who aren’t protecting workers. When workers try to sound the alarm to OSHA by submitting COVID-related complaints, only a fraction lead to in-person inspections, and even fewer result in a citation. As of late March, 3% of closed COVID-19 complaints to federal OSHA offices deemed valid by the agency resulted in an inspection, 12.5% of which led to citations with an average penalty of $13,000. OSHA has reduced over a third of penalties.
OSHA also has yet to issue an emergency temporary standard covering COVID-19 infections in the workplace, leaving states the ability to step in where there is a gap in enforcement.
Because of that gap, Baker issued guidelines for Massachusetts’ local boards of health and DLS to use their existing legal powers to enforce workplace-safety rules for all employers, a Baker spokesperson said. Baker issued a state of emergency in March 2020, mandating all but essential workers remain home.
The DLS was not prepared for the pandemic, staff were working remotely and the few inspectors it had in May 2020 were not going into the field to visit businesses in person, health directors said.
“It was a pass the buck. The state didn’t really have the capacity, so they shifted that responsibility to the local boards of health,” said Jodi Sugerman-Brozan, executive director of the Massachusetts Coalition for Occupational Safety and Health (MassCOSH).
Learning they would be the front-line enforcers for pandemic workplace safety was a jolt to health directors since the administration only two years earlier envisioned no such role for the agencies.
The 2019 “Blueprint for Public Health Excellence” noted that the boards were “already struggling to meet existing mandates” such as overseeing communicable diseases, housing, water and sewage systems, environmental, animal and insect-borne hazards, emergency preparedness, control of tobacco sales and much more.
“The Commonwealth’s local public-health system has mostly been unable to keep up with these new demands,” the report said.
Board directors said they first learned they were front-line COVID-19 workplace-safety enforcers in a May 18, 2020, memo sent by Baker’s administration — the same day his 19-member Reopening Advisory Board announced new state guidelines allowing some businesses to reopen after a two-month shutdown.
“They didn’t even know it was coming,” Sugerman-Brozan said.
“We had no say in crafting the guidance, which all was done at the cabinet level,” said Philip Leger, the chair of the Royalston Board of Health. “But all the dirty work was dumped on us.”
The already-existing multilayered workplace-safety landscape in Massachusetts only got more confusing, with Baker’s action leading to an “inadequate and disjointed” response to COVID-19, Sugerman-Brozan said.
Besides OSHA and DLS, other state and municipal agencies, including the state Alcoholic Beverages Control Commission, building inspectors and law enforcement all have a hand in workplace-safety enforcement in Massachusetts. Critics of the governor’s May 2020 reopening guidelines said DLS did not have any dedicated COVID-19 worker-complaint hotline nor a multilingual online form that would allow frightened workers to complain anonymously if they felt at risk.
Enter the Attorney General’s Office, which has no jurisdiction over workplace safety but does oversee fair-labor laws. It stepped in to intake complaints for four months while DLS created a plan of its own, Attorney General Maura Healey said.
“I think DLS maybe was overwhelmed,” Healey said. “Eventually DLS came to do it and that’s good, but in the first instance, it was our office.”
Baker’s administration has since issued dozens of orders outlining business restrictions, rules for travel and mask requirements, many of which directors of local boards of health said they are tasked with enforcing.
“I would say 100% of the governor’s orders are enforced by the Board of Health, which is very time consuming because we only have one or two people to try to enforce 100 orders,” said Bruce Murphy, the Yarmouth health director. “Plus there’s sub orders, and then (the DLS) has their own orders.”
The Reopening Advisory board failed to include a single local public health board chair – though it did include heads of software, airline, men’s clothing and cybersecurity firms, mayors, hospital administrators, the head of regional public affairs and community relations for Fidelity Investments, and the owner of a Nantucket bookstore and brewery, among others.
By the time the guidelines were released, complaints were already flooding in from Cape Cod to the Berkshires alleging employers were ignoring social-distancing, sanitizing, masking and other safety requirements.
In addition to contact tracing for COVID-19 cases, boards of health in Massachusetts — by law — must enforce the state sanitary code, conduct inspections of stores, public spaces and housing, monitor tobacco sales to minors, make sure citizens are immunized and much more.
“Some of them are just so overworked that they can’t do their core functions,” Hugo said.
Massachusetts is not the only state that has pushed workplace-safety enforcement down to local boards of health.
From 2020 to 2021, Utah’s state OSHA referred about 20% of people complaining about COVID-19 hazards to local health departments. OSHA did not have a standard to address these complaints, said Eric Olsen, spokesperson for the Utah Labor Commission, which oversees the state’s OSHA.
The decentralized nature of Massachusetts state government means it is one of only a few states that doesn’t dedicate funding to local boards of health.
By mid-April, according to data maintained by DLS, there were over 1,600 complaints for both public-sector and private employers in Massachusetts dating to May 2020.
Roughly half of those have resulted in violations, the data shows.
Employers flouting the rules include big-box stores, suburban car dealerships, doctor and dentist offices, country clubs, tanning and nail salons, gyms, jewelry shops, grocery stores, retail establishments, tax businesses and driving ranges.
Dozens of bars and restaurants have been sanctioned, as well as a police department, town halls and even a local board of health, state data shows.
Inspections revealed business owners lying about being closed, telling customers to enter back doors or working with COVID-19 symptoms. Other employers were not reporting employees who tested positive for COVID-19 and were telling workers not to quarantine — in violation of the state’s emergency orders — or refusing to enforce a mask-wearing policy.
“(Local Board of Health states) we are having a VERY difficult time with them and their employees,” wrote one inspector about one local business in June 2020. “They are not abiding by the quarantine requirements, challenging our authority to order people to quarantine. Their employees are reporting to work in violation of the quarantine orders.”
“Many complaints: failure of employees and customers to wear masks. Fight broke out between masked and unmasked customers,” wrote one inspector in July 2020 about another business.
“We were getting almost 100 phone calls a day,” said Nantucket Health Director Roberto Santamaria.
Enforcement has taken its toll. Besides the onslaught of complaints coming in from workers and state agencies, boards of health also must make sure businesses with issues are inspected, ensure social-distancing COVID-19 protocols and attestation plans are in place, and follow up on any compliance issues, health directors said. Directors said they have been harassed by angry employers and criticized for their decisions as they managed mounting caseloads.
“I’ve been yelled at, sworn at, hung up on,” said Leger, the Royalston Board of Health chair who has worked in public health in Western Massachusetts for more than 30 years.
Leger attributes his December heart attack to the stress of the added workload. “I am 69 and I never had any heart issues before. When they took me off the work email list, I could feel a weight lift.”
“All of us have gone through a level of hell,” McAuliffe said. “It has taken such a toll on health directors, health agents and public health nurses, they are leaving in droves.”
DLS declined several requests for an interview. An agency spokesperson issued the following statement:
“The Department of Labor Standards remains committed to ensuring workplace safety and adherence to COVID-19 health and safety protocols. Before the pandemic started, DLS had an existing hotline and email address for workers and the public to file complaints, and established an additional online form to respond to the greater importance of workplace complaints during the pandemic. DLS and other state agencies have provided training and support for local health departments throughout the COVID-19 pandemic, including twice-weekly virtual forums and one-on-one support. DLS was honored to be named the (Massachusetts) Health Officers Association’s 2020 Hilliard Award winner for its collaborative work with local health departments to support public health in communities across the Commonwealth throughout the pandemic.”
Health directors said their new duties did not come with extra staff, training on business regulation nor funding.
“None. Zero. It was very much the wild west for a little bit,” Santamaria said. “It took a good three or four months before we actually had some guidance as to how to enforce some things.”
MassCOSH held a workplace-safety training Sept. 9 and more than 170 local board of health staffers came, Sugerman-Brozan said.
Other problems with the May state guidelines also quickly became apparent.
Large categories of public-sector workers like those employed by schools are excluded. The guidelines also gave employers the ability to self-certify they were in compliance. The guidelines lacked information about necessary respiratory protection, the risk of airborne exposure, how employers would provide personal protective equipment or how compliance would be verified.
As new guidelines were put in place, directors said they would learn of them on a Friday, study them over the weekend and have to be ready to enforce them on Monday morning. The lack of input from local public health to those making the decisions in the Massachusetts State House in Boston created more tension, directors said.
The May 18 municipal guidance also did not require local boards of health to report complaints to the state and directors said they are not regularly doing so.
That means the state data is just a sliver of the true picture of workplace-safety hazards during COVID-19, according to a March 5, 2021, letter to the Massachusetts Board of Elementary and Secondary Education from MassCOSH. The centralized state data “does not include the complaints that have gone directly to local public health officials, OSHA and the Attorney General’s office which are estimated to be 10-20 times the amount that have gone to DLS,” the letter states.
Ensuring safe workplaces in a state that has already lost nearly 17,215 people could not be more crucial in Massachusetts, as new information illustrates the occupational tentacles of the virus. Data released April 28 from the state Department of Public Health shows Massachusetts residents who worked outside of their homes last year were more than twice as likely to test positive for the virus as those who did not.
The COVID-19 Community Impact Survey of nearly 35,000 residents also showed that half of those who could not socially distance blamed it on work.
Another study of death-certificate data in 2020 revealed racial disparities in COVID-19 worker deaths.
Also on April 28, the Massachusetts AFL-CIO and MassCOSH released its annual “Dying for Work” report cataloging state residents who died on the job, including COVID-19 victims.
A study published in February by a Massachusetts public health expert shows that between March 1 and July 31, 2020, Black and Hispanic workers in Massachusetts died at rates four times higher than whites.
Devan Hawkins, an instructor at the Massachusetts College of Pharmacy and Health Sciences, examined 555 death certificates of workers between the ages of 16 and 64 who died of COVID-19. Hawkins determined that the workplace was a key factor in their deaths — finding health-care support, transportation and material moving, and food preparation and serving at the top of the list of 11 occupational categories.
“The role that work plays in the transmission of COVID‐19 deserves further attention. This study addressed only mortality risk, but many more workers are contracting COVID‐19 at work, becoming sick and dealing with the long‐term impacts of the disease,” Hawkins wrote.
The Attorney General’s Office fielded more than 3,000 complaints about workplace safety in less than four months, with restaurants, retail establishments and hotels leading the employers named, agency records show. The Attorney General’s Office referred many of the complaints to the DLS or local boards of health for further action, Healey said.
As of April 1, an additional 845 complaints have been filed with the agency’s Fair Labor Division by workers who claim they have been denied their pay during the pandemic, including overtime, sick time or vacation pay, agency records show.
And the state Department of Industrial Accidents has had over 10,000 COVID-19 related worker compensation claims since the start of the pandemic, including 23 male and female workers who died on the job, DIA data through mid-February shows.
The bulk of the claims are from female employees working in healthcare, the data shows. More than 120 employers are disputing claims by workers that they contracted the virus on the job, the data shows.
Meanwhile, the state continues to violate its own law — passed in June 2020 — by not making public data on the occupation of individuals contracting or dying of COVID-19 that it is obligated by that statute to collect.
While health directors said they ask someone where they work when dealing with a COVID-19 positive case, they are so backlogged with work, they haven’t been able to enter all the information needed into the state Department of Public Health software system, MAVEN.
Letitia Davis, an epidemiologist and retired director of the DPH Occupational Health Surveillance Program, said the state’s software case management system, MAVEN, had to be modified in order to allow for collection of data and the contract tracers had to be trained to collect that information.
The federal Centers for Disease Control and Prevention is now making funds available to improve the collection of occupation and industry in public-health surveillance systems, which Davis said became “overwhelmed” during the pandemic.”
Through a spokesman, DPH Commissioner Dr. Monica Bharel declined a request for an interview.
DLS, in its statement, said: “Every effort is made to collect all demographic information, including occupation, but it could be missing for a number of reasons, including the person contacted refused to provide the information.”
Sugerman-Brozan sees it differently.
“The state is violating its own law. (The DPH information) continues to be missing 90% of the data,” she said.
“We will never, ever in Massachusetts know the true impact that workplace exposure has played in the spread of this virus.”
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