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 director 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.”
This story was produced by Boston University in collaboration with the Howard Center for Investigative Journalism at the University of Maryland’s Philip Merrill College of Journalism. The Howard Center is an initiative of the Scripps Howard Foundation in honor of the late news industry executive and pioneer, Roy W. Howard.
The Bay State’s crisis illustrates 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 strove to fill in the gaps.
OSHA’s absence pressured an understaffed Massachusetts Department of Labor Standards, which oversees public-sector workers, to step in. But it could not manage its statewide workload and pandemic workplace-safety compliance on its own, according to interviews with more than a dozen state officials, health directors 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 grappling with scores of mandated duties — from monitoring communicable diseases to 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.”
A collaboration among the Howard Center for Investigative Journalism at the University of Maryland, Boston University, the University of Arkansas and Stanford University found that the national 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.
OSHA, the federal agency responsible for ensuring worker safety in the private sector, was “asleep at the switch for the duration of the pandemic” under the Trump administration, said Rick Claypool, a research director for Public Citizen, a consumer-rights advocacy group.
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 has yet to issue an emergency temporary standard covering workplace COVID-19 infections. Because of that enforcement gap, Baker could issue guidelines for local health boards and DLS to use existing legal powers to enforce workplace-safety rules for all employers, a Baker spokesperson said. But with not enough inspectors and staff working remotely, DLS was overwhelmed.
“It was a pass the buck. The state didn’t 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 were front-line enforcers for pandemic workplace safety jolted health directors since the Baker administration’s 2019 “Blueprint for Public Health Excellence” noted the boards were “already struggling to meet existing mandates,” including overseeing water and sewage systems, animal and insect-borne hazards, and emergency preparedness.
Board directors learned of their new duties the same day Baker’s 19-member Reopening Advisory Board announced the new state guidelines - by memo.
“We had no say in crafting the guidance, which all was done at the cabinet level,” said Royalston Board of Health Chair Philip Leger. “But all the dirty work was dumped on us.”
The multilayered Massachusetts workplace-safety landscape got more confusing, creating 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, all have a hand in workplace-safety enforcement in Massachusetts.
The Attorney General’s Office, which oversees fair labor but not workplace safety laws, accepted worker complaints while DLS set up a system, Attorney General Maura Healey said.
“I think DLS maybe was overwhelmed,” Healey said.
Baker’s administration has issued dozens of COVID-19 related orders.
“I would say 100% of the governor’s orders are enforced by the Board of Health, which is time-consuming because we only have one or two people to try to enforce 100 orders,” said Yarmouth Health Director Bruce Murphy. “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, and the reopening guidelines also lacked an anonymous complaint line for frightened workers.
Besides contact tracing for COVID-19 cases, Massachusetts boards of health must enforce the state sanitary code, monitor tobacco sales to minors, make sure citizens are immunized and more.
“Some of them are just so overworked that they can’t do their core functions,” Hugo said.
By mid-April, according to DLS data, there were over 1,600 complaints for both public-sector and private employers dating to May 2020, with about half resulting in violations.
Employers flouting the rules include big-box stores, country clubs, nail salons, grocery stores, restaurants, a police department and even a local health board, the data shows.
Inspections revealed employers lying about being closed, telling customers to enter back doors or working with COVID-19 symptoms.
“We are having a VERY difficult time with them and their employees,” wrote one local health inspector in June 2020 about one business. “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.”
“We were getting almost 100 phone calls a day,” said Nantucket Health Director Roberto Santamaria.
“I’ve been yelled at, sworn at, hung up on,” said Leger, attributing his December heart attack to the stress. “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, adding his colleagues are “leaving in droves.”
DLS declined several requests for an interview. A 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 or 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.”
The May 18 guidelines also excluded broad categories of public-sector workers, let employers self-certify they were compliant and lacked information about respiratory protection. They also didn’t mandate local health departments report complaints to the state and directors said they are not regularly doing so.
A March 5, 2021, MassCOSH letter to the Massachusetts Board of Elementary and Secondary Education said the DLS 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.
Department of Public Health data released April 28 shows Massachusetts residents working outside of their homes last year were more than twice as likely to test positive for the virus as those who did not. A 2020 study of state death-certificate data revealed racial disparities in COVID-19 worker deaths.
The state continues to violate a June 2020 law requiring it to make public data on the occupation of those contracting or dying of COVID-19.
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.”
But according to Sugerman-Brozan: “We will never, ever in Massachusetts know the true impact that workplace exposure has played in the spread of this virus.”
Shannon Iriarte, Shwetha Surendran and Maggie Mulvihill reported for Boston University in collaboration with the Howard Center for Investigative Journalism at the University of Maryland.