ACLU targets Iowa OSHA over COVID-19 complaints, including for Dubuque businesses

Civil rights and labor organizations allege that Iowa Occupational Safety and Health Administration officials have not properly investigated complaints about employers failing to protect workers from COVID-19.

Officials from the American Civil Liberties Union of Iowa and other groups filed a complaint with federal OSHA officials last month, stating that of 148 COVID-19-related complaints that had been filed with the state administration as of Oct. 4, just five resulted in an inspection.

Several of those complaints were made about local businesses, according to federal and state records.

Iowa OSHA officials say they have processes to determine when complaints merit deeper investigation and that they have followed those procedures.

ACLU officials argue that the administration did not follow its own rules, and that when it comes to preventing COVID-19, every allegation should have merited closer investigation.

“Iowa OSHA was created to protect workers, so it is failing its fundamental mission to protect Iowa workers in a large scale and serious way,” said Veronica Lorson Fowler, communications director for the ACLU of Iowa. “That’s why we’re asking federal OSHA to do an investigation.”

Allegations

In its complaint to federal OSHA officials, the ACLU argues that Iowa OSHA “failed to follow its own standards to inspect formal complaints and complaints of imminent dangers regarding COVID-19 at meatpacking plants, health care facilities and nursing homes as it was required to do.”

The ACLU complaint states that Iowa OSHA’s operations manual says all complaints classified as “formal” be inspected, which did not happen for 33 of 36 closed complaints statewide.

ACLU officials argue that many complaints classified as “nonformal” also should have been inspected, based on Iowa OSHA’s standards that an inspection be conducted if the complaint “alleges that an imminent danger situation exists.”

Fowler contends that all of the 148 COVID-19-related OSHA complaints made in the time period represented in the ACLU’s complaint should have merited an on-site inspection.

“If a business or a factory or a plant is not taking adequate measures to protect its workers from COVID-19, that poses a significant health threat and also can cause death,” she said.

Iowa OSHA officials provided written statements in response to a request for comment from the Telegraph Herald.

Officials wrote that inspections typically are warranted if they receive a “valid formal complaint,” which is signed by an employee or authorized employee representative and offers “reasonably particularity” for an inspection request. It also must provide grounds to believe the employer is violating OSHA-related laws or standards that expose employees to physical harm “or that an imminent danger of death or serious injury exists.”

Mary Montgomery, of the Iowa Division of Labor, wrote to the TH that federal OSHA guidance gives state officials different options to consider when deciding whether an inspection is needed related to COVID-19. Iowa OSHA staffers examine how serious a hazard the complaint presents “and the probability that the hazard will occur.”

“Iowa OSHA followed our written procedures and federal OSHA’s guidance documents in handling all the complaints in a timely fashion,” Montgomery wrote.

Local complaints

The TH obtained files for six complaints made against Dubuque employers during the time period covered in the ACLU’s complaint, using federal OSHA data on COVID-19-related complaints and an open records request with Iowa OSHA. A seventh complaint was filed after that time period.

None of the complaints resulted in an inspection, and records indicate that Iowa OSHA officials were satisfied with the responses they received. Iowa OSHA did not classify any of the allegations as posing “imminent danger” but did mark them as “serious.”

American Red Cross

Iowa OSHA received a complaint March 19 from an employee of the American Red Cross in Dubuque alleging that management staff told employees that they were not allowed to wear masks when in close proximity to donors.

Celia Clifford, a senior vice president for the American Red Cross, provided a written response to OSHA stating that the nonprofit introduced mask guidelines in April and subsequently started requiring staff, volunteers and donors to wear masks.

A second complaint was made in July, when an employee alleged that staffers were exposed to blood donors who had been exposed to COVID-19 by people with whom they live without quarantining for 14 days.

Clifford wrote in response that the U.S. Food and Drug Administration in May removed a recommendation that people who have close contact with COVID-19 cases wait to donate blood.

“Maintaining an adequate blood supply is vital to public health, and the FDA has encouraged state and local governments to take into account the essential nature of donating blood and that it can be done safely and consistently within social-distancing guidelines,” the letter states.

E.J. Voggenthaler Co.

On March 24, an employee of E.J. Voggenthaler Co. alleged that employees of the steel and fabrication business who lived in states with stay-at-home orders were told they needed to come to work, that a manager had “been ill with flu-like symptoms,” and that “little to no supplies” had been distributed to mitigate the pandemic.

Company President Kevin Kisting wrote a response to OSHA maintaining that his business would be classified as an essential one. Employees were encouraged to stay home if they were sick or exposed to someone who was but were asked to come to work if not.

Kisting wrote that officials took steps to limit public access to the business and that sanitization supplies were available. He wrote that he had been “unavoidably exposed” to a sick individual who claimed to have a cold, later developed a headache and self-quarantined for 14 days.

In a follow-up email, the complainant took issue with that response, stating that equipment was shared without proper sanitization, employees should have been notified about Kisting’s self-quarantine, and an employee of another business where there had been a case of COVID-19 was able to enter the building.

Prairie Farms Dairy

On May 19, the spouse of an employee at Prairie Farms Dairy filed a complaint that workers were not being told when someone had contracted COVID-19 and officials were not sanitizing spaces after finding out someone was infected. The complainant alleged employees did not feel informed about steps being taken to protect them from COVID-19 and that there was inadequate social distancing.

Plant Manager Tom Fassbinder responded with the facility’s COVID-19 protocols, which stated that the plant was cleaned and sanitized daily and that “deep cleaning and sanitizing will be performed immediately if any person in the plant displays COVID-19 symptoms.”

Fassbinder wrote that the plant allows for social distancing and employees who could not distance themselves were required to wear masks. He wrote that information about COVID-19 symptoms and mitigation had been posted on the employee bulletin board.

Supercuts

On May 26, an employee of Supercuts at 2575 Northwest Arterial filed a complaint that the salon was not being cleaned and disinfected at the end of the day, that chairs were not spaced 6 feet apart and that too many employees were working at a time.

Owner Dave Brylski wrote in response that the salon was cleaned and disinfected at the end of the day and cleaned again in the morning. He wrote that four to six employees could work at a time, based on the building’s square footage, with a maximum of four typically doing so. He provided a diagram and photos of the store indicating there was proper distancing throughout the salon.

American Eagle Outfitters

On July 8, an employee of American Eagle Outfitters in Kennedy Mall alleged that an employee had tested positive for COVID-19, but the business did not shut down, properly sanitize or inform employees of possible exposure.

Tom Banta, a senior director at AEO Inc., whose brands include American Eagle, wrote in response that an employee tested positive for COVID-19, and contact tracing indicated “no other employees were at risk.” Banta wrote that stores were deep cleaned daily.

Andersen Windows & Doors

On October 16, an employee of Andersen Windows & Doors alleged that the business was allowing employees exposed to the virus to work.

Andersen Safety and Environmental Manager Eric Beauchamp responded with the business’s COVID-19 protocols, which state that employees who have close contact with a COVID-19 case should be sent home for at least seven days. Employees who didn’t have symptoms after seven days could return with a negative test result or if they were monitored daily for symptoms, wore a surgical mask and socially distanced for 14 days after exposure.

Response

By filing their complaint, ACLU of Iowa officials seek to compel federal OSHA officials to investigate the state agency.

Fowler said the group wants to see Iowa OSHA officials change their practices to perform on-site inspections according to its rules.

“If that takes more funding for more inspectors, we’re completely behind that,” she said. “If it doesn’t have the tools, it needs to be given the tools, and this is an incredibly important part of keeping people safe in our state.”

Montgomery wrote that Iowa OSHA officials have received a letter from federal OSHA officials asking for their response to the ACLU’s complaint.

“We will fully cooperate, and we will respond to any findings and/or recommendations at the proper time,” Montgomery wrote.

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