OSHA Rejects GAO Poultry Recommendations: Sees No Problem With Workers’ Restroom Access

In a surprising and disappointing apparent rollback of OSHA’s enforcement policy related to poultry inspections, Acting Assistant Secretary Loren Sweatt has rejected recommendations from the Government Accountability Office (GAO) designed to address findings that poultry workers are intimidated about reporting health and safety problems to OSHA, particularly about their inability to get bathroom breaks. The GAO recommended in a report released last week that OSHA “consider off-site interviews or exploring other options to obtain information anonymously,” and that OSHA inspectors make a greater effort to ask poultry workers about the extent to which bathroom access is a problem.

The GAO report is a follow-up to its May 2016 study that found meat and poultry workers have the highest injury rates of any industry, and that even those numbers are underreported.  The current report notes that the meat and poultry industry had the 8th highest number of recent severe injury reports of all industries, although the industry’s self-reported injury and illness statistics declined from 2004 through 2015. Severe injury reports result from a recent OSHA requirement that employers report to OSHA all hospitalizations, amputations and loss of an eye (in addition to fatalities.)

GAO also observed that while OSHA had increased its annual inspections of the meat and poultry industry from 177 in 2005 to 244 in 2016, it’s still a tiny proportion of the 5,282 meat and poultry plants in the United States that employ an estimated 481,000 workers.

The report was conducted at the request of Senators Patty Murray (D-WA) and Robert Casey (D-PA), and Congressman Bobby Scott (D-VA).  In addition interviewing OSHA and USDA staff, the GAO conducted group and individual interviews with meat and poultry workers in six locations in five states: Arkansas, Delaware, Nebraska, North Carolina, and Virginia.

The report comes in the midst of a highly controversial industry effort to increase the line speed in poultry processing plants, a change that would increase musculoskeletal injuries suffered by poultry workers.

Intimidation

The GAO found that although the number of OSHA inspections had increased over the past ten years, OSHA “faces challenges identifying and addressing worker safety concerns because workers may be reluctant to contact OSHA for fear of employer retaliation.” Because OSHA interviews workers in the workplace, and those interviews are conducted in private, the supervisor still knows the identities of interviewed workers. Making the problem worse, according to GAO, “some meat and poultry workers may be less likely to report or seek treatment for injuries and illnesses because of their vulnerable status as undocumented or foreign-born workers and because of their economic vulnerability.”

Interviews with workers revealed widespread complaints about supervisors discouraging workers from using the restroom

Aside from workers being reluctant to report serious safety and health conditions, the problem most overlooked may be their lack of bathroom access. Interviews with workers revealed widespread complaints about supervisors discouraging workers from using the restroom. OSHA guidance issued in 1998 states that denial or delay of bathroom access can result in various serious health effects, such as urinary tract infections, constipation, abdominal pain, and hemorrhoids, and workers interviewed by the GAO also reported that they had suffered health effects like kidney problems from delayed or denied bathroom breaks. Under OSHA’ sanitation standard (CFR 1910.141), employers are required to make toilet facilities available so that employees can use them when they need to do so.

According to GAO:

Workers we interviewed in all five states said their requests to use the bathroom are often delayed or denied, and workers in two states said they fear punishment if they ask to use the bathroom too frequently or complain about lack of bathroom access to their supervisors or to OSHA. One industry representative told us they believe some supervisors in meat and poultry plants deny bathroom access in order to maximize production output.

The problem with enforcing the right of a worker to go to the bathroom, according to the GAO,  is that if workers fear dismissal or other punishment for talking to OSHA about bathroom breaks, OSHA inspectors may not become aware of the problem. Furthermore, OSHA inspectors do not always ask specifically about bathroom access, and workers who experience bathroom access problems may not volunteer this information either because they’re afraid or because they may not realize that such information would be of interest to OSHA.

Common Sense Recommendations:  Rejected

In order to address the intimidation issue, learn more details about hazards, injuries, and illnesses and gather more information about bathroom break problems, the GAO made two recommendations to OSHA: First, that OSHA should “take additional steps to encourage workers to disclose sensitive concerns during OSHA inspections of meat and poultry plants; for example, by considering additional off-site interviews or exploring other options to obtain information anonymously.”

Second, in order to determine whether, and to what extent bathroom access is a problem, OSHA should simply ask workers during meat and poultry plant inspections about whether bathroom access is a problem.

But despite the GAO’s findings, OSHA leadership doesn’t think there is a problem that has to be dealt with, and anyway, it would be too much trouble. A letter from Deputy Assistant Secretary Loren Sweatt accompanying the report states that:

GAO’s recommendation to conduct additional offsite interviews, however, is challenging in terms of witness cooperation, resources and CSHO safety. Moreover each inspection requires a flexible approach to address unique workplace hazards.  OSHA cannot commit to asking about bathroom access during each inspection at a meat or poultry processing facility.

Nothing in these GAO recommendations is particularly new or novel. OSHA’s Field Operations Manual, which sets forth the procedures under which OSHA conducts inspections and enforcement, emphasizes the importance of “a free and open exchange of information between OSHA inspectors and employees” and allows inspectors to conduct interviews off site when they feel that off-site interviews would be more effective.  The problem is that if the workplace doesn’t have a union, or worker advocates that are helping the workers, it can be difficult to find an acceptable time and venue.

Furthermore, an OSHA poultry directive, issued in 2015 and currently under legal challenge, authorizes inspectors to expand inspections beyond other hazards that may be the subject of the inspection — including musculoskeletal injuries and bathroom access —  and some regional OSHA poultry emphasis programs require inspectors to inquire about bathroom access.

In rejecting these GAO recommendations, OSHA may be signalling a reversal in long-standing OSHA enforcement policy. 

Thus, in rejecting these GAO recommendations, OSHA may be signalling a reversal in long-standing OSHA enforcement policy. Deborah Berkowitz of the National Employment Law Project and a former OSHA official in the Obama administration, was quoted in Inside OSHA saying  “We are stunned that OSHA’s response to the glaring findings in this report is to announce a rollback of longstanding enforcement policies, thereby ensuring that the poultry industry will have an easier time hiding serious hazards. The inevitable result will be even more injuries to this already vulnerable worker population. That is simply unacceptable.”

See No Evil, Hear No Evil…

According to GAO, “OSHA officials said they did not believe lack of bathroom access was a widespread problem in the meat and poultry industry” and offered a number of creative explanations:

• OSHA has not compared bathroom access practices in the meat and poultry industry with other industries involving moving production lines because they vary by establishment even within a single industry. (This, even though OSHA has cited poultry establishments for lack of bathroom access a number of times.)
• requiring inspectors to investigate bathroom access would divert inspectors’ limited resources from higher-priority hazards and could result in companies’ claiming that the line of questioning is unsubstantiated.
• there were a small number of citations issued related to bathroom access. (Of course, this is somewhat circular reasoning: The GAO argued that the reason for few citations may be that workers don’t raise the issue unless OSHA inspectors ask about the problem. See no evil, hear no evil…)

And in an understatement one rarely hears from government bureaucrats, GAO stated that “There is a mismatch between concerns we heard from workers and the problems reported by OSHA, particularly in the area of bathroom access” and kindly suggested that “given that workers whom we asked about bathroom access during off-site interviews in all five states said that bathroom access is a problem, and worker advocates we interviewed stated it was as well, it is
possible that OSHA is missing instances of this hazard, resulting in incomplete data to guide its inspections.” True, it is possible.

In an understatement one rarely hears from government bureaucrats, GAO stated that “There is a mismatch between concerns we heard from workers and the problems reported by OSHA, particularly in the area of bathroom access.”

But I am less charitable than GAO. I suspect that the real reason for OSHA’s blindness may not just be innocent naïveté, but rather a bit of over-attentiveness to their industry friends who don’t seem overly concerned about the problem. The GAO reported that “Meat and poultry industry representatives we interviewed said that bathroom access is not a problem because companies provide bathroom access when needed.”  And after the report was issued, the National Chicken Council, the National Turkey Federation and the U.S. Poultry & Egg Association said that the poultry industry “is constantly looking at ways to continue to improve” worker safety, and Barry Carpenter, president of the North American Meat Institute explained that “In a tight labor market like the one we have now, there is an even stronger incentive to protect our employees and ensure that they are healthy and able to perform their jobs.”

And just to make sure that OSHA never sees bathroom access as a problem, poultry employers have sharply increased the number of denials of entry to OSHA inspectors — forcing them to get a warrant — as OSHA increased inspections of poultry plants during the Obama administration and began expanding inspections beyond the initial complaint incident to look at things like musculoskeletal injuries and bathroom breaks.  From 2005-2015, there were only 16 denials of entry in the meat and poultry industry, but in just 2016 alone, there were 15 denials, all in Region IV, specifically in Georgia, Alabama, Florida and Mississippi.

Other Issues

Medical Mismanagement: The GAO also confirmed problems that OSHA had previously identified with medical mismanagement of workers suffering from musculoskeletal disorders, including inappropriate medical treatment, lack of worker access to health care, underqualified practitioners, and challenges to reporting. In one case, OSHA reported that a number of workers were fired after suffering MSDs — sometimes on the same day of the MSD occurrence — and in another case a worker made over 90 visits to the nursing station before referral to a physician. GAO talked to workers and worker advocates who reported similar problems. GAO recommended that OSHA revise its medical management guidance and OSHA agreed.

Cooperation With FSIS: A 1994 Memorandum of Understanding between the Department of Agriculture’s Food Safety and Inspection Service (FSIS) and OSHA calls for FSIS inspectors — who are present in most poultry plants —  to make referrals to OSHA when they identify unsafe conditions. FSIA is responsible for ensuring the food safety of meat and poultry products. Despite efforts in recent years and some cross-training of FSIS inspectors, such referrals are rare, partly because FSIS inspectors fear that referrals to OSHA may trigger an OSHA inspection of FSIS due to a number of hazards FSIS inspectors are exposed to. GAO made three recommendations related to these issues to encourage OSHA and FSIS to work more closely together and to address hazards faced by FSIS inspectors from chemicals used to disinfect chickens. FSIA was noncommittal.

Research: Finally, GAO made a recommendation to the National Institute for Occupational Safety and Health (NIOSH) to study safety and health hazards of FSIS inspectors’ exposure to peracetic acid. NIOSH agreed.

What Others Are Saying

I’m not the only one upset about this report and OSHA’s response.

Industry watchdog Nebraska Appleseed, applauded the report quoting a former meatpacking worker in Nebraska: “Meatpacking plants are not only slaughterhouses for pigs, they are also slaughterhouses for humans,” said Lupe Vega-Brown.”They exploit you and after you get injured, they will fire you. Within a few years of working at a plant, it will end your dreams.”

A NELP statement added:

Echoing the finding of its 2016 report, the GAO was particularly critical of how in-plant health units treat injured workers—highlighting new concerns of inappropriate response to worker injuries and illnesses and persons working outside their legal scope of practice. (The 2016 report confirmed that meat and poultry workers continued to face the same hazardous conditions previously cited by the GAO in 2005—including traumatic injuries from machines and tools, exposure to chemicals and pathogens, and fast-paced repetitive tasks associated with musculoskeletal disorders.)

According to an Oxfam statement:

“The health and safety problems that workers face in poultry processing plants have been exacerbated in the past year due to a growing climate of fear and oppression in an industry where workers are mostly immigrants, refugees, and people of color,” said Alex Galimberti, Senior Advocacy and Collaborations Advisor for Oxfam America. “Every day, workers experience problems, such as denial of treatment for repetitive motion injuries, lack of access to bathroom breaks, and sexual harassment. Most of the time, they feel unsafe reporting these issues to federal agencies or to top level management.”

Oxfam issued a report in 2016 about the bathroom break problem in the poultry industry.

The United Food and Commercial Workers union praised the report and tied it into the industry’s recent push to increase line speeds:

“The hard-working people who work in poultry plants have some of the most dangerous and physically demanding jobs in America. This report sadly confirms that many of these skilled professionals who keep our food safe are struggling to keep themselves safe at work. They have earned and deserve better.

“The dangers endured by poultry workers that are highlighted in this report also underscore why a recent request by the National Chicken Council to increase line speeds defies common sense and is being clearly driven by greed. We urge the U.S. Department of Agriculture to take this report seriously and reject that request so that poultry workers and the food we all consume can be kept safe.”

Congressman Bobby Scott and Senator Patty Murray made the following statements:

“When workers face intimidation, retribution, or fear losing their jobs for reporting hazards, seeking medical treatment, or simply using the restroom, it is incumbent on federal agencies to increase their responsiveness to those concerns,” said Congressman Scott (VA-03). “In addition, GAO reported that during 2016, 15 meat and poultry plants –all in the southeast—have refused OSHA access to expand complaint inspections to cover additional recognized hazards; this development has impaired OSHA’s ability to protect workers, and should compel the Department of Labor to vigorously defend its statutory authority to enter plants ‘without delay’.”

“Every worker should be able to make a living without risking their health or safety, so it’s deeply concerning to hear workers in meat and poultry factories are knowingly being put in harm’s way,” said Senator Murray (D-WA). “Given this report’s findings and the Trump Administration’s continued efforts to undermine worker protections, it’s clear our nation’s top health and safety agency needs a leader who has a record of fighting for workers lives and livelihoods—and I will continue to press OSHA nominee Scott Mugno on his commitment to put workers ahead of corporations’ bottom lines.”