OSHA’s Meager COVID Response In N.H.
When Walter Riley was first asked about Villa Crest Nursing Home in Manchester — the place where his fiancé, 68-year-old Marge Gardner, worked as a housekeeper before she died of Covid-19 — he could scarcely contain his bitterness.
“The bastards,” he said. “They didn’t give her adequate protection. They didn’t have instructions on how to fit it. They never should have sent her in those rooms, knowing her age and her condition. They knew she had diabetes.”
In December, the U.S. Occupational Safety and Health Administration, or OSHA, fined the nursing home $20,820 for two violations: “The employer did not ensure that an effective respiratory protection program was established with worksite-specific procedures for respirator use … such as but not limited to fit testing and medical evaluations,” and it did not report the death after eight hours. Riley, who filed the OSHA complaint two months after Gardner died on June 11, called it a “cover-up.”
The nursing home is disputing the penalty, said an OSHA spokesperson.
Villa Crest, which has had a total of 15 deaths and 101 infections due to Covid — including 45 staff members — declined comment, passing a reporter’s questions on to its parent company, National HealthCare Corp., which did not reply by deadline. National HealthCare, whose stock is traded on the New York Stock Exchange, reported $1 billion in revenue in 2020, an increase compared to 2019, thanks to $47 million in government stimulus funds.
Villa Crest’s penalty was the exception, not the rule — not because of the amount of the fine, but because it was imposed at all.
As of March 5, it was the only Covid-related citation issued in New Hampshire by OSHA.
The agency has closed some 135 complaints and referrals in the state as of Feb. 14, ranging from employers not providing personal protective equipment and not ensuring social distancing to lack of proper sanitation. The list includes some of the state’s biggest employers, including Dartmouth-Hitchcock Medical Center, Walmart, Sig Sauer and United Parcel Service, as well as cafes and stores with just five employees.
None of those other complaints resulted in a citation or a violation. NH Business Review asked how many open investigations are pending and did not get a response by deadline, but generally about 20% of inspections are open at any given time.
A ‘lousy’ system
OSHA has been under fire of late. On Feb. 25, an inspector general’s audit said complaints from February through October 2020 rose 15% because of the coronavirus, but inspections during that period declined by half. The audit also faulted the agency for not promulgating specific rules geared toward the pandemic.
The decline in the number of live inspections was partially due to the pandemic itself. Not only were there fewer sites to inspect, but the agency also shifted to remote operations. Investigations, which previously might include chatting with some employees, now consisted of a phone call or Zoom chat with the employer.
For instance, OSHA investigated by a video call a Jan. 25 complaint against Chamberlain Companies, a Salem custom millwork firm alleging that “employer does not require face mask where social distancing is not possible,” said Rebecca Janco, the company’s CEO.
“It found no wrongdoing on our part. We were in compliance,” she said. “They knew that based on the information we provided to them.”
McCoy’s Alinement and Towing, an Exeter firm, was similarly able to handle a complaint that it wasn’t following guidelines by submitting a written statement.
“We are a garage,” explained the employee who had handled the investigation complaint and asked not to be identified. The mechanics didn’t wear masks because they were working alone under the car in bays, and some had heavy beards, but added that in response the company now requires customers use a separate entrance to minimize the employee’s exposure.
According to the inspector general’s audit, “while most OSHA inspections are done remotely during the pandemic, workplace hazards may go unidentified and unabated longer, leaving employees vulnerable.” Employers correct the problems more quickly, said the audit, when someone is at their door.
But the low number of inspections isn’t just a matter of the pandemic. For one, just about everybody agrees that OSHA is understaffed.
“They are doing a great job with the amount of resources they have,” said Brian Mitchell, director of the New Hampshire Coalition for Occupational Safety and Health. With the handful of inspectors in the state, he said, it would take “a hundred years” to inspect every business.
The national coalition is more critical, arguing that OSHA wasn’t particularly aggressive when it comes to worker safety under the Trump administration, especially when it comes to the number of Covid-related inspections and violations.
“The fact that you only had one Covid fine is an indication of how lousy the system has been,” said Peter Dooley, an industrial hygienist with the national safety and health coalition. “The result has been that transmission at the workplace was totally swept under the rug at the beginning of the pandemic. What we have here is a tragic lack of accountability.”
Dooley added the Biden administration has issued new guidance “with lightning speed” and appointed two more officials, one who will focus specifically on Covid and disaster response, which could be a “game-changer.” But guidance is not regulations and can’t be used for enforcement.
Difficult to prove
No OSHA official, including the head of the New Hampshire office, would agree to an interview for this story. The only response was a general statement, issued in November, to be attributed to a Department of Labor spokesperson: “The Department is committed to protecting America’s workers during the pandemic, and OSHA has been working around the clock to that end.”
In a response to the inspector general’s report, the agency said, “OSHA continues to investigate every complaint about workplace safety.”
Since the pandemic began last year, according to the agency’s data, as of Feb. 28 it has conducted 1,781 inspections nationally, just 11.2% of the 15,864 closed complaints. In the Boston office — which covers all of New England — there were 148 inspections of 2,358 closed complaints, a ratio of 6.6%, the second lowest among the agency’s 10 regions.
In New Hampshire, five inspections were conducted, four related to worker deaths — 3.7% of the 135 complaints reported as being closed.
It is not surprising that inspections are related to worker deaths. According to the inspector general’s report, 60% of 1,133 Covid-related inspections were prompted by someone who died of the disease.
Deaths usually do trigger an inspection, since an employer has to report one eight hours after it occurs, but it doesn’t mean all Covid-related worker deaths warrant an inspection. There has to be some indication that the person got the illness at work, since there’s the possibility that a worker might have picked up the virus elsewhere. In addition, a death must occur within 30 days after the “incident,” but it is often hard to pinpoint the exposure, and often it takes more than a month to die.
It became more difficult after OSHA issued guidance in May 2020, giving both the inspector and the employer greater discretion in determining whether the Covid death was related to the job, and therefore even needed to be inspected.
One indication of the number of workers getting infected by Covid is the first injury report from the state Worker’s Compensation Division at the New Hampshire Department of Labor. It listed 3,500 injuries, but that doesn’t mean they would result in workers’ compensation claims. Indeed, even before any was filed, employers issued 679 denials that the disease was related to employment. DOL doesn’t keep track of claims filed or paid out. The state only gets wind of it when there is a dispute of a claim, and so far there have been six of those.
Such claims, usually the only legal option for workers who can’t directly sue their employer, are rare.
Mark Wiseman, a prominent workers’ compensation attorney in Concord, hasn’t been contacted for a single workers’ compensation case, though he has heard from a few other attorneys who have been. The cases are difficult to prove, Wiseman said, “but there is an opening to collect. You have to show that there is risk created by the environment, that the worker was exposed to this all the time.”
Showing that is a bit easier in the case of healthcare workers, like the aforementioned Marge Gardner. Indeed, three of the four OSHA death investigations involved nursing homes.
Yet at least 10 New Hampshire healthcare workers have died of Covid, according to the state website, while 78 have been hospitalized and 4,027 were infected. (Last September, the National Nurses Union published a report that listed New Hampshire as having the highest percentage of healthcare workers getting Covid in the country, at 23.1%.)
Aside from the death investigation at Villa Crest, the other two were conducted at nursing homes owned by Genesis Healthcare, one of the largest nursing home chains in the country. (Genesis, which reported $1.5 billion in debts and owes another $2.2 billion for its buildings, announced earlier this month that it was selling 51 of its 325 retirement and nursing home facilities around the country, including three of its 20 facilities in New Hampshire.)
OSHA opened an investigation last June into Genesis’s Hackett Hill Center in Manchester in the midst of an outbreak that infected 70 people there, including 16 staffers and resulted in 16 deaths. Genesis spokesperson Lori Mayer, said she could not comment about the workers because of privacy, and that the matter was closed and OSHA did not issue any recommendations for improvement.
Genesis has been particularly hard-hit by the virus. More than 14,000 Genesis staff and residents nationwide were infected and more than 2,800 people died in 2020. That’s a greater number of Covid deaths — when taking into account the number of nursing home beds — compared to Genesis’s large competitors, according to a Washington Post article.
Despite receiving about $254 million in federal pandemic relief, the company has been hemorrhaging money. It suffered a $62.8 million loss in the third quarter of last year, and the company warned that it might not continue as a growing concern. Then it drew controversy when CEO George Hagger retired on Jan. 5 despite collecting a $5.2 million retention payment late October.
‘She was scared’
The death of 78-year-old Betty McKiever-Lowell from Covid-19 two days before Christmas prompted the fourth OSHA investigation. She was employed as a hospice nurse by ReadyNurse Staffing Services, a Genesis company that 14 months ago placed her in the Elms Center in Milford as a hospice nurse, according to Jeff Lowell, her husband of 40 years.
She became interested in hospice after her daughter died of cancer and, at 61, she picked up her nursing degree at New Hampshire Technical Institute. She also became interested in healthcare issues in general, making a failed run as a Democrat for state representative in 2002, and was active in other ways, sitting on the board of their manufactured home park in Jaffrey.
There were PPE issues at the Elms, but the real problem came after Thanksgiving, said Lowell, as an outbreak started that infected 45, including 14 staff members, and 10 deaths, including hers.
“She was scared,” he said. “It was getting out of control.”
But she loved what she was doing and kept on doing it. On Dec. 15 she tested positive, and was hospitalized five days later. She died on Dec. 23. Her husband, who is 71, also tested positive but only suffered mild symptoms for a few days.
A NASCAR fan, she would read or play video games with people who had no idea she was nearly approaching 80, he said. During the holidays, she crocheted afghans as gifts.
“I have three of them. I have no idea who they were for,” he said. “They are just sitting there.”
The investigation is still open. Genesis would not comment on a particular case. Former CEO Hager had a few words to say about his workforce when the company released its third quarter release reporting revenues of $940 million.
“Our admiration and respect for all of our employees, who have been true heroes for the last eight months, only increases as they have come to work each and every day despite challenging conditions to care for our patients and residents. We are truly blessed by and grateful for their dedication and compassion,” he said.
Marge Gardner also liked the holidays. Although she didn’t make much money as a housekeeper — $8 or $10 an hour — she used to take $2,500 and visit Catholic Medical Center to hand out $20 bills for all the kids who were suffering with things like cancer, said Riley.
She first knew something was wrong when she was driving erratically on her way home from Villa Crest and soon learned “she was wicked full of Covid,” said her son, Ron Gardner. When Riley brought her to the hospital, “they grabbed her. They said I couldn’t come in. ‘Go wait in the car. ’”
He only talked to her once on the phone before she died.
“ ‘Babycakes, take me home,’ she told me,” he said. “I said, ‘I can’t, they won’t let me.’” Riley — who did not test positive himself — said he now goes for help at the Seacoast Mental Health Center. He sees a psychiatrist and priest — “Many nights, I am still crying.”
One of the hardest things, he said, was when he came upon her wedding dress. “But now she will never be able to go down the aisle with me.”
These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org.