By Jason Pohl, Dale Kasler and Ryan Sabalow, The Sacramento Bee, February 18 2021
A year into the pandemic, California’s workplace safety watchdog still doesn’t know how many nursing home workers have contracted COVID-19 on the job and died, a Sacramento Bee review of state records shows.
California’s health department regularly updates a list of COVID-19 infections and deaths at nursing homes. But only about half of those listed facilities have bothered to report the death to Cal/OSHA, the agency in charge of enforcing worker safety, according to the state records.
The failure to report the COVID-19 deaths — by as many as 64 nursing homes — exposes a significant flaw in the state’s response to the pandemic. The state is unable to fully track the spread of the deadly disease in a workplace setting where, more than anywhere else in California, the virus is ruthlessly stalking employees and patients.
That makes nursing homes inherently more dangerous, worker advocates say, because it obscures where poor workplace conditions are seeding community outbreaks.
“The consequence is incredibly serious,” said Arnulfo De La Cruz, executive vice president at Local 2015 of the Service Employees International Union, which represents 400,000 employees of nursing homes and long-term care facilities. “Nursing home administrators really have to be held accountable for failing to protect workers.”
More than 8,800 residents and some 220 nursing home employees have died of COVID-19 related complications, according to the California Department of Public Health’s online dashboard.
The issue is particularly important among certified nursing assistants and vocational nurses, the twin pillars of most nursing homes but also among the lowest-paid workers in the healthcare industry. The long-term care industry employs some 147,000 workers to help care for an estimated 88,000 California seniors in nursing homes.
They often earn minimum wage and are disproportionately women of color. Fearing retaliation, they’re among those least likely to speak up against management when, for instance, the nursing home denies that a coronavirus infection occurred on the job and thus fails to report it to Cal/OSHA.
“They want to under-report COVID deaths because it looks bad for them,” said Charlene Harrington, professor emerita of nursing at UC San Francisco.
Some in the nursing home industry say the data doesn’t tell the whole story — and they’re alarmed at any implication that facilities are intentionally covering up worker deaths.
“Failing to report things to OSHA can lead to criminal penalties. It isn’t a matter of public reputation,” said Liz Tyler, a spokeswoman for Western Convalescent Hospital in Los Angeles. “These are very serious times with very serious issues, and I don’t know of a nursing home that isn’t trying to … make all of the right reports to all of the right people.”
Interviews with other nursing home operators reveal a muddled picture. For this story, The Bee compared records from the California Department of Public Health as well as Cal/OSHA and attempted to speak with nursing home management for nearly 70 facilities.
Of those who responded to questions, eight, including Western Convalescent Hospital, said they didn’t report the deaths because their in-house investigations concluded the employees hadn’t been infected on the job. Three operators acknowledged an employee death but told The Bee they had made the proper notification.
Officials for seven facilities told The Bee that the state health department’s records are wrong altogether. None of their employees have died of COVID-19, they said, suggesting yet another instance of California’s flailing effort to measure the pandemic’s toll.
Attempts to speak with representatives of the other four-dozen facilities were unsuccessful.
What is clear is the danger that comes from working in a California nursing home in the age of pandemic. Of the more than 123,000 Californians who’ve filed COVID-related workers’ compensation claims, one-third are healthcare workers, according to an analysis by the California Workers’ Compensation Institute. Among healthcare workers filing claims, nearly 40% work at either skilled-nursing facilities or residential-care facilities serving the elderly.
When someone dies from COVID-19 at a nursing home, either resident or employee, the death must be reported to the California Department of Public Health. The agency’s online database lists every nursing home where a worker has died of COVID-19, but it doesn’t spell out how many have died.
The reporting trail gets even more problematic from there. By state law, the employer must also notify the Division of Occupational Safety and Health, known as Cal/OSHA, about any workplace-related hospitalization or death. Failure to do so can result in a $5,000 fine if the state finds out, and so far the agency has levied fines on six nursing homes for not reporting.
Yet the two agencies essentially work in silos. The public health department doesn’t file a report with Cal/OSHA when it’s told of an employee death — nor does it believe it should.
“We do not have a role in this process,” Corey Egel, a health department spokesperson, wrote an email.
A spokesman for Cal/OSHA’s parent agency, the Department of Industrial Relations, said he was unaware of the nursing home reporting discrepancy. The department did not make a representative available for an interview, nor did it respond to written questions submitted more than a week ago.
According to Public Health’s database, 109 nursing homes have had employees die from COVID-19 as of mid-December. Yet only 45 of those facilities notified Cal/OSHA of either a hospitalization or death, according to data the agency compiled about that same time for The Bee in response to a Public Records Act request.
Last September Gov. Gavin Newsom signed AB 2644, which accelerates the speed at which nursing homes must report all deaths from communicable diseases to the Department of Public Health during an official emergency. But the law doesn’t direct the facilities to notify Cal/OSHA.
Previously, The Bee reported about Cal/OSHA’s failure to fully account for serious coronavirus infections in all California workplaces. Inspectors at the understaffed agency detected a total of just 779 workplace-related infections that involved hospitalization or a death since the pandemic started.
Critics say the lack of reliable data about nursing-home worker deaths is particularly galling.
“OSHA as a state regulator is there to ensure worker safety and should be gathering that information,” said Mike Dark, a staff attorney with California Advocates for Nursing Home Reform. “And what they’re running up against is the fact that these facilities are thinking first as businesses, and only second as healthcare providers.”
THE NURSING HOMES THAT HAVE REPORTED DEATHS
Sean Beloud was the administrator at Stollwood Convalescent Hospital in Woodland last spring when an outbreak raced through the facility. Seventeen residents and a certified nursing assistant who’d worked there for 20 years died.
It was among the earliest and deadliest coronavirus scenes in Northern California, and it had enormous ramifications. The nursing home has since closed, and Beloud has taken a job at another facility in the Sacramento area.
Records show that Stollwood was among the minority of facilities that reported correctly to both agencies.
It was April. That early in the pandemic, Beloud said, it was somewhat unclear in the skilled-nursing world whether her death from COVID-19 would actually be considered a workplace injury. Regulations were changing fast, and questions abounded, he said.
But he reported it to Cal/OSHA anyway. “I never thought twice,” he said.
“The correct data is what will help develop future trends, maybe future regulations, things that are important to our industry,” Beloud said. In his mind, another set of eyes could only make things better.
Regarding the prospect of half of California’s nursing homes not reporting to Cal/OSHA?
“I just feel this doesn’t pay tribute to these people who have put their lives on the line,” he said.
The bulk of the nursing homes that appear to have failed to notify Cal/OSHA was in Los Angeles County, which has been one of the pandemic’s nationwide hotspots. Several were in Fresno and Modesto as well as in the Bay Area.
Every nursing home in greater Sacramento that reported an employee death to the Department of Public Health also notified Cal/OSHA.
“We understood our obligation to report such a case to OSHA. And so we did. It’s just that simple,” said Tom Garberson, a lawyer for Eskaton, a major Northern California chain of nursing homes and senior-living facilities with more than 10,000 residents in greater Sacramento.
‘HAPPIER TIMES IN THE FUTURE’
The Bee attempted to contact officials at all 64 nursing homes that didn’t notify Cal/OSHA despite showing up on the Department of Public Health’s database of nursing homes where employee deaths were reported.
Most didn’t respond. Of those who did, several said they weren’t required to report to Cal/OSHA.
Brius Management Company, the largest for-profit nursing home chain in California, had five facilities with employee deaths on the health department’s database that did not report to Cal/OSHA. The company, however, said those employees didn’t contract COVID-19 on the job and therefore their deaths didn’t need to be filed with Cal/OSHA.
“There were no employee COVID-19 deaths in connection with employment,” said Brius’ lawyer Mark Johnson.
Reliant Management offered the same explanation for not notifying Cal/OSHA after an employee at its Northgate Acute Care facility in Marin County died of COVID-19.
“We carefully reviewed the standards for reporting to Cal/OSHA and this incident did not meet the reporting standard,” said Josh Sable, legal counsel at Reliant. He wished the late employee’s family “happier times in the future.”
Several other nursing home operators said the Department of Public Health’s database was simply wrong.
Alcott Rehabilitation Hospital, a Los Angeles nursing home, is listed as having lost at least one employee to a lethal case of COVID-19. But the facility’s lawyer denied it.
“There have been no staff COVID-related deaths to our knowledge,” said Trent Evans, general counsel at Sun Mar Healthcare, a chain of Southern California facilities that includes Alcott.
“The facility has been in compliance … for infection prevention,” he added.
Last June the company staged all-you-can-eat churro parties at its facilities to honor employees for their work in preventing COVID-19 infections.
The Bixby Knolls Towers Health Care facility shows up on the Department of Public Health database. But its parent, the nonprofit Retirement Housing Foundation denied that any employee had died of COVID.
“I’m not sure where they’re getting their information,” said Retirement Housing spokesperson Chris Ragon. “We have looked on our end and we have nothing.”
Some nursing home operators insisted they notified Cal/OSHA about worker deaths — even though the notifications don’t appear in the data OSHA supplied to The Bee.
“If there’s nothing in the Cal/OSHA files, I can’t explain that,” said Larry Kamer, a spokesman for Crestwood Manor in Fremont’s parent company, Crestwood Behavioral Health.
TOO OVERWHELMED TO REPORT COVID DEATHS?
Cal/OSHA is responsible for worker health and safety in all job sectors, including nursing homes. Cal/OSHA requires facilities to report each time an employee is hospitalized or dies on the job or “in connection with work” within eight hours of when an employer found out about the illness.
Employers must report if someone is hospitalized midway through a shift. They must report if someone has symptoms while working. And they must report if a worker is exposed to people known to have the disease and later tests positive.
But the nature of the coronavirus pandemic — where symptoms can take days to develop — complicates what “in connection with work” actually means in practice.
Cal/OSHA tells employers to report if there is any reason to believe it’s work-related at all.
“Where there is uncertainty about whether an employee contracted COVID-19 at work, the employer should err on the side of reporting the illness to Cal/OSHA,” the rules say. “Reporting a serious illness is not an admission that the illness is work-related, nor is it an admission of responsibility.”
Critically, it is Cal/OSHA that would launch an investigation into workplace conditions that might have contributed to an employee’s serious illness or death. Those investigations can also result in fines.
The California Association of Health Facilities, which represents 80% of nursing homes in the state, said administrators should be given some slack if they did fail to report when they should have.
Cal/OSHA and the state health department have “identical reporting requirements that differ only slightly in time and have little other practical impacts,” said Deborah Pacyna, a spokeswoman for the group.
“A breakdown in reporting to Cal/OSHA could result during a large outbreak where providers are prioritizing patient care over paperwork,” she said. “When a facility is hit with an outbreak, the primary focus is patient care and obtaining staff to cover yet another requirement — adequate staffing levels.”
Critics roundly disagreed that failing to report a worker’s death was a minor paperwork problem.
“They don’t get to pick and choose which regulations they fall in and which they do not,” said Dark, the lawyer with California Advocates for Nursing Home Reform.
When employers don’t report, Cal/OSHA investigators don’t know where workers are dying, whether safety rules were violated, and whether an inspection is necessary. They don’t know where to look.
“Cal/OSHA is in the dark, our members are in the dark as a whole (in) understanding what the strategy of the employer is,” said De La Cruz, the union official. “And then, frankly, the consequence is that the community, the facility itself, everyone is put at risk.”
Businesses spanning nursing homes to restaurants are hurting during the pandemic, said Laura Stock, director of UC Berkeley’s Labor Occupational Health Program. So a lapse here or there is understandable.
“On the other hand, workers are suffering tremendously. And these laws that are in place are in place for a reason,” she said.
Cal/OSHA has begun fining some nursing homes for failing to report deaths or serious illnesses from COVID-19.
In October, the agency slapped a $92,500 fine against Kingston Healthcare Center in Bakersfield for a host of violations that include not reporting workers had been hospitalized with COVID-19.
The Bakersfield facility is appealing the fine.
Since then, five other nursing homes have been penalized by Cal/OSHA for failing to report serious COVID infections among their employees.
Labor officials, though, say the financial penalties aren’t sufficient.
“If it’s intentional, then it’s criminal,” said Tony Owens, vice president for bargaining at SEIU Local 1000, which represents nursing home employees.
“We can’t sit back and expect that the employer is going to do the right thing,” he said.