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NC under-counting COVID deaths among workplace fatalities, worker advocates say

The N.C. Department of Labor reported 26 workplace fatalities related to COVID-19 in 2020, which labor advocates say is likely a severe undercount.

Most of the COVID-19 related deaths in the department’s annual report were among health and long-term-care service workers. Employees at meat-processing plants also made up a significant share of the deaths.

But limited state inspections and a reporting system that critics say falls short make it difficult to know how many deaths resulted from workplace exposure.

“Identifying the source of a COVID-19 illness is very difficult and is not always possible. Attempts are made to contact trace to identify a source,” Jennifer Haigwood, director of communications and policy development at the Department of Labor, wrote in an email to The News & Observer.

Employers must report all work-related fatalities to the state division of Occupational Safety and Health, which then does an inspection. The office also learns about coronavirus-related deaths from worker complaints and referrals from other state agencies.

Haigwood said cross-referencing reports from the Medical Examiner’s Office could detect if an employer failed to report a work-related fatality, making it “unlikely that work-related fatalities are significantly being undercounted.”

However, she said, it’s possible that deaths go unreported or can’t be definitively tied to a workplace.

In April, an officer at the Durham County jail died from COVID-19 amid an outbreak among staff at the facility. The death was not included in the state workplace fatality report.

Haigwood told The N&O that her agency was “not previously notified by the employer or any other entity regarding a possible employee work-related fatality associated with a detention center in Durham ... there may have been an unreported work-related fatality last year.”

In an email to The N&O, AnnMarie Breen, a spokesperson for the Durham County Sheriff’s Office, wrote, “There is no indication the officer contracted COVID-19 in the Durham County Detention Facility, or from any DCSO work-related activity” and that “his work duties did not place him in close contact with other employees, including any employees who may have contracted COVID.”

Seven other officers tested positive for COVID-19 in the outbreak.

DOL received almost 5,000 complaints

Worker advocates say 26 COVID-19 deaths — out of a total of 91 reported workplace deaths — strikes them as low.

“Twenty-six sounds like it’s a gross underestimate, just given how prevalent COVID has been, especially among essential workers,” said MaryBe McMillan, president of the North Carolina AFL-CIO.

Hunter Ogletree, director of the Western North Carolina Workers Center, said the number appears especially low considering the labor department received 4,842 complaints from workers regarding COVID-19 in 2020.

“One of the excuses that’s been given by DOL, by the governor’s office, is that it’s hard to pinpoint a COVID exposure to the workplace, which I think is just an excuse not to do that,” Ogletree said.

Derek Burleson, a spokesperson for Tyson Foods, where DOL reported three worker deaths due to COVID-19, declined to comment on whether the numbers may be an undercount but said the company has invested more than half a billion dollars nationwide in protective measures, including temperature scanners, social distance monitors and random testing.

According to Sarah Little, of the North American Meat Institute, such COVID-19 protections across the meat and poultry industry have reduced the average new daily case rate for meat and poultry workers by 95% since May.

Clermont Ripley, co-director of the Workers’ Rights Project of the N.C. Justice Center, said she too thinks the number “has to be an undercount.” But at the same time, she was surprised by how high it was, after the labor department repeatedly downplayed the threat of COVID-19 in the workplace last year.

“Former Commissioner [Cherie] Berry had said in writing last year that COVID was not a workplace hazard and that workplace deaths weren’t very serious and didn’t need to be regulated in the workplace,” Ripley said, referring to a Nov. 9 letter Berry wrote to her organization and other labor advocacy groups. In the letter, Berry wrote that “statistically, the virus has not been proven likely to cause death or serious physical harm from the perspective of an occupational hazard,” as The N&O previously reported.

In that letter, Berry refused the labor organizations’ request to issue any regulations to protect workers from COVID-19, prompting the groups to file complaints with both a Wake County court and the federal Occupational Safety and Health Administration.

COVID-19 related deaths made up over a quarter of all workplace deaths reported by the labor department in 2020.

Black people were disproportionately represented among the COVID-19 related deaths compared with other workplace deaths. Seven of the 26 COVID-related fatalities were Black workers. The same number of Black workers were counted among the 65 workers who died of all other causes.

Gaps in workplace COVID-19 reporting

Reporting of COVID-19 cases in the workplace, not just deaths, has been incomplete, too.

Employers only have to report COVID-19 cases to the labor department if they resulted in hospitalization or death. And federal guidance adopted by the state in May regarding employers’ COVID-19 reporting obligations emphasizes that employers may not be able to determine whether a worker contracted COVID-19 at work “given the nature of the disease and ubiquity of community spread.”

According to the guidance, employers are obligated to consider “all reasonably available evidence” to determine whether a worker contracted COVID-19 at work. That evidence could consist of multiple cases developing among workers who work closely together, or if the worker’s duties involve close exposure to someone with a confirmed case of COVID-19 and “there is no alternative explanation.”

If an employer cannot determine whether the case resulted from exposure in the workplace after a “reasonable and good faith inquiry,” the guidance says, the employer does not need to record that COVID-19 illness.

Employers reported 22 COVID-related fatalities to DOL and 47 COVID-related hospitalizations in 2020, according to DOL.

Labor advocates say that a system that relies on voluntary reporting from employers is inevitably going to result in under-reporting.

The good employers are going to cooperate, and there are plenty of others who either because they’re lazy or because of oversight or actually because of malicious reasons, are not going to show that information,” said Ripley.

Lee Wicker of the North Carolina Growers Association, said farmers represented by his organization “report all deaths to the government and cooperate in the investigation process.”

Wicker said, “The difficulty with COVID for farmers and farm workers — just like every other human being — is it’s impossible to know with certainty where you got it, when you got it, who you got it from.”

He said some employers may not report COVID-19 deaths “because of the stigma or because they don’t think it was a work-related incident. Employers who produce something don’t want their customers to be afraid to buy their products.”

Wicker said some employees may not come forward about having contracted COVID-19, either.

“Economic pressures on the employers and on the employees incentivize pretending like there’s not a problem,” he said.

Peter Dooley, safety and health senior project coordinator for the National Council for Occupational Safety and Health, said under-reporting of workplace fatalities and injuries was common before the pandemic.

There’s very little structure in place to really be capturing work-relatedness of injury and illness in this country,” said Dooley. In general, data released by states and the Bureau of Labor Statistics typically only capture fatalities due to accidents rather than occupation-related illness.

These gaps in reporting have been exacerbated by COVID-19, Dooley said.

Since May, North Carolina’s Department of Health and Human Services has maintained a separate log of COVID-19 clusters, including in workplaces. By Dec. 21, in its final cluster report of 2020, DHHS had reported 31 deaths associated with workplace clusters, and 7,277 cases. DHHS includes deaths and cases of non-employees in its tally.

According to the cluster report, information about clusters is collected through contact-tracing by DHHS and direct reports from employers and individuals. But only employers in congregate living settings, child care programs and K-12 schools are required to report; for all other employers, reporting is optional.

As a result, the tally “underrepresents the full scope of clusters and associated cases and deaths occurring across the state,” according to DHHS.

Workplace deaths increase, penalties remain low

The state’s 91 reported workplace fatalities in 2020 was the most in at least 10 years. The previous annual high within the last decade was 2019, when the Department of Labor reported 55 workplace fatalities.

The construction industry had the most work-related fatalities last year with 26, five more than in 2019.

Mecklenburg County had the most workplace fatalities with nine, followed by Wake County with eight, and Guilford with six.

Since 2013, deaths on the job have increased by 48%, according to an analysis of NCDOL data by the N.C. Justice Center, and by 63% according to its analysis of U.S. Bureau of Labor Statistics data.

At the same time, penalties in North Carolina have remained far below the national average. In 2018, the average penalty nationwide was $2,792; in North Carolina it was $1,772.

The number of initial “willful” violations reported by DOL — employers that purposefully fail to comply with a requirement or act with “plain indifference” to employee safety — fell from 25 in 2012 to 11 in 2018.

In response to a request for comment on these trends, Burleson, the Tyson spokesperson said: “We operate with the health and safety of our team members as our top priority, it’s not determined based on what potential penalties there are by the DOL.”

Labor advocates say the increase in non-COVID-related fatalities could have something to do with the pandemic, too.

Many workplaces are operating with fewer employees, said Terry Brewington, president of United Steel Workers Local 959 in Fayetteville. He said that strains employees who are still working and can make the workplace more dangerous. “If I have seven people doing the work of 10 people, you’re going to cut corners,” he said.

And limited penalties create low incentives to address the problem, he said.

“If you got somebody running red lights and stop signs and they just get a letter saying ‘don’t do it no more’ instead of getting a ticket, a lot of the times they’re going to continue running red lights, running stop signs because they’re not being held accountable,” Brewington said.

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