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Nursing home worker deaths going unscrutinized by federal government

Andrew Cuomo

Less than a month before he died of Covid-19, Victor Sison posted photos of himself at the New Jersey nursing home where he had worked for many years.

He was wrapped in what appeared to be garbage bags.

“LORD HELP ALL MY FELLOW FRONTLINERS,” he wrote in early April.

Sison, who loved caring for the elderly and went out of his way to spend time with residents who didn’t get visitors, had complained to his family about a lack of basic protective gear such as gowns and masks. As the coronavirus crisis worsened, Sison volunteered to come in on his days off to fill in for others who had called out sick.

But shortly after posting the photo of himself in plastic, Sison, too, became ill. The 64-year-old died on April 18, just a year before he planned to retire. His family wasn’t allowed to visit him in the hospital due to Covid-19, so they said their goodbyes over FaceTime as a hospital worker held the phone over Sison’s bed.

Sison’s son, Paulo, said he appreciates that nursing home operators want to help the elderly, but worried “they sometimes forget about their workers.”

To date, the state health department has reported that 65 employees have contracted the virus at the facility where Sison worked, Complete Care at Hamilton Plaza. Three have died.

But when Sison passed away, his death went unnoticed by the one federal agency responsible for protecting workers during the pandemic: the Occupational Safety and Health Administration (OSHA). OSHA did not send inspectors to the facility to find out what happened to Sison or his two colleagues, or to determine whether working conditions at the 120-bed nursing home were safe, according to agency data. Following inquiries from CNN about Sison, however, OSHA said this week it has launched an investigation into a death at the facility “to determine the proper course of action.”

Nursing homes are some of the highest risk environments for contracting Covid-19, and former OSHA officials say the agency is ill-equipped and unprepared to ensure that workers are protected. While these critics say that the agency should require health care employers to report every worker death from Covid-19, OSHA issued guidance in May that gives employers permission to not report deaths to the agency if a “reasonable and good faith inquiry … cannot determine whether it is more likely than not” that an employee’s Covid-19 infection was linked to exposure at work.

The regional operator of the facility where Sison worked confirmed that he had died of Covid-19 and “was a valued and beloved staff member who is greatly missed,” but it said the facility never experienced a shortage of PPE. It said Sison’s death “was not reported to OSHA at that time, in accordance with OSHA’s own guidelines” and that “due to the lack of contact tracing in April, we have no other definitive information.”

Many other deaths are going unreported as well, with nursing home operators claiming they can’t determine whether someone became ill at work or contracted the disease elsewhere — despite major outbreaks among both residents and employees at their facilities. That means OSHA — as well as state worker safety programs approved by the agency — has only physically investigated a fraction of nursing home employee deaths.

Even when deaths or imminent dangers are reported to OSHA, and federal or state regulators launch an investigation, the agency has taken few actions to improve working conditions for other employees or hold employers accountable — leaving countless workers around the country exposed to unsafe working conditions, according to a CNN analysis of OSHA inspection data, worker safety complaints and interviews with former government officials, workers and their families.

“As far as I can tell, they are sleeping,” said David Michaels, the former head of OSHA during the Obama administration, specifically about the agency’s top leadership. Now a professor at George Washington University School of Public Health, Michaels said that the government should be sending a message to the long-term care industry at large by penalizing employers who are putting their workers in danger.

There is no reliable national data on the number of worker deaths at nursing homes related to Covid-19, but at least one government estimate puts the figure at more than 600 workers at around 400 facilities. As of mid-June, only 88 government inspections had been triggered by worker deaths or hospitalizations at nursing facilities. OSHA said it had received reports of 99 fatalities within the industry that were related to Covid-19, meaning regulators had investigated most of the deaths that were actually reported. Since then, another 48 “fatality/catastrophe” inspections at nursing homes have been logged, according to recent data.

Safety regulators have conducted these kinds of inspections at around a dozen additional long-term care facilities identified by CNN, such as assisted living centers or veterans homes since the beginning of the pandemic.

New Jersey, where Sison worked, is one state where it would presumably be easy for the agency to identify the facilities where worker deaths have occurred because the state’s health department publicly releases that information online. According to the state, nearly 120 employees have died of coronavirus at more than 90 long-term care facilities in New Jersey, nearly all of which have battled large outbreaks. Yet OSHA data shows that inspections related to Covid-19 deaths or hospitalizations have only been opened at around 25 facilities in the state.

Had OSHA officials looked at the state’s data on nursing home deaths, they would have seen that a single nursing home chain there, Alaris Health, had reported more than 500 employee cases of Covid-19 among its 16 facilities. Seven workers have died.

But none of the Alaris facilities have been visited by OSHA inspectors, according to the agency’s records. Two employees sued one of these locations in April for allegedly hiding coronavirus infections from employees, refusing to test patients and pressuring staff to come to work with symptoms of the disease.

A spokesman for Alaris, which has denied the claims in court, said “each and every allegation in this case is false,” adding that employees were never pressured to work while sick and that information was never withheld from staff or residents. He would not say whether Alaris had reported worker deaths to OSHA, saying only that the company “has and will continue to comply with all state and federal reporting guidelines.”

In a statement to CNN about its oversight of the nursing home industry during the pandemic, OSHA said the agency has the tools it needs to police workplaces through existing regulations and has been providing “robust guidance for employers and employees.”

The agency declined to comment on ongoing investigations, which can take up to six months to conclude. “OSHA is swiftly and diligently working to keep America’s workforce safe and healthy during the coronavirus pandemic,” the agency said in a statement.

Former OSHA officials, however, say the agency should be doing far more to protect workers during these unprecedented times. They said OSHA lacks the resources to respond to the overwhelming number of complaints and deaths — with staffing of inspectors at the lowest level in 45 years. And the guidance issued to employers about reporting deaths was murky, they said, leaving an opening for deaths to go unreported and uninvestigated.

The American Health Care Association, a trade organization representing long-term care facilities, said that the long incubation of the virus makes it difficult to determine whether fatalities are “work related” and therefore required to be reported to OSHA. While the organization said cases among health care workers could be attributable to community spread, it said facilities may want to “err on the side of over reporting to OSHA.”

But that does not appear to be happening.

Supervisors at an Illinois nursing home, for example, did not immediately report an employee death because they were trying to determine where the virus was contracted, a spokesman for the corporate owner said in June. Even though he acknowledged the facility had an outbreak, with state data showing a total of 59 Covid-19 cases and 11 deaths, the spokesman said at the time it was “unclear whether this staff member was infected at the facility.” After the CNN inquiry, the facility did report the death to OSHA.

A Connecticut nursing home, meanwhile, told CNN it did not report a nurse’s April death to the agency despite eventually learning of a positive Covid-19 test.

Even the deaths that do result in inspections may not involve agency officials actually visiting the facilities in-person. OSHA said some can take place remotely when resources are stretched thin.

Until this week, the federal agency had only cited one nursing home for a violation related to Covid-19 — levying a roughly $6,500 penalty on a Georgia facility accused of failing to report worker hospitalizations in a timely manner, which critics said would do little to discourage bad behavior or serve as a warning to other facilities. On Tuesday, the agency issued a press release saying it had cited the operator of three Ohio nursing homes for failing to ensure proper PPE usage, proposing penalties of more than $40,000.

In some cases, the agency had been put on notice that work conditions were potentially dangerous. A review of some 700 closed complaints filed by long-term care employees show they have continued to report not being given adequate protective equipment, such as masks and gowns as recently as this month, and others have claimed they were forced to work while sick with coronavirus or were kept in the dark about outbreaks at their facilities.

But the majority of their complaints have been closed after employers denied the claims or promised to address alleged issues. OSHA data also shows that several complaints came from staff working at facilities that later became sites of OSHA investigations into at least one employee death.

That was the case at St. Albans Community Living Center, a New York veterans home where Mavis Charles-France had worked for 10 years before dying of coronavirus in May.

Worried that the facility was not prepared for coronavirus to strike, Charles-France’s coworker and fellow nurse Geddes Scott said he contacted OSHA in April, about a month before Charles-France’s death. The federally run facility didn’t have enough PPE or tests for employees, he said, and basic precautions to control the spread of the virus were not being taken by management. As Covid-19 cases began to emerge at the facility, he said workers, including Charles-France, were concerned about their safety. “She told me she was scared,” said Scott. “She was crossing her fingers and hoping.”

Scott recalls being told by an OSHA representative that the only way regulators would enter the building to investigate a complaint like his would be if someone died. Agency data shows that a complaint made on April 9 about a lack of masks and gloves at the facility was closed.

“The agency wasn’t listening to us,” said Scott. “The parachutes and help that are supposed to be there for employees, those are just fallacies.”

It was almost a month after Charles-France’s death that Scott said he received a message from an investigator. When they got on the phone, he said, the inspector didn’t ask many questions about the facility’s handling of Covid-19 and “seemed like they were clearing their desk,” instead of trying to get to the bottom of why Charles-France died. Scott said he remains skeptical that the investigation will result in any substantial changes at St. Albans.

A spokesman for the VA New York Harbor Healthcare System said it is “mourning the recent loss of a longtime employee who passed away from COVID-19 complications,” but disputed Scott’s concerns, saying that the facility has always provided workers with adequate PPE and that Centers for Disease Control and Prevention guidance was being followed to protect all employees, adding that “complaints are not facts, they are merely allegations.”

Charles-France, who had studied to become a nurse after migrating to New York from Guyana in 1985, planned to retire next year, according to her sister Desiree Charles. She wanted to be closer to their mother and do more volunteering. Charles’ most recent memory of her sister was how, after getting off her shift on a Friday night in late April, she drove three hours to help care for their 97-year-old mother. “It was always her dream to be a nurse and to be helping people,” she said.

Winston France, Charles-France’s husband, said they also had plans to travel in retirement. He became sick with the virus just days after his wife, and at one point they were in the same hospital room together. He remembered his wife being concerned about her safety at work and specifically complaining about people entering her office without proper PPE.

“A lot of people say why didn’t she just take off?” he said. “She cared about her job so much … Mavis wanted to be a nurse and she died. She died being a nurse.”

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