This bill was meant to protect California workers from COVID. Some counties use it to protect employers instead. – Daily News

on Jun21
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In the thick of the pandemic, California adopted a law to tell workers of dangers their employers often kept secret: Which workplaces had suffered outbreaks of COVID-19, and how severe they were. Yet six months after the law took effect, most employees know scarcely more than before, a Bay Area News Group investigation has found.

Only about one-third of the state’s 58 counties released specific information on workplace outbreaks in response to recent public records requests, and those specifics varied wildly. The state is now collecting detailed data, as required, but posts only numbers by broad industry categories that offer few useful insights on risk.

Remarkably, some government agencies insist they are prevented from publicizing workplace outbreaks by the very law — AB 685 — that sought to force them open.

Labor advocates and legal experts blame two culprits for the law’s failure: sloppy legal language and recalcitrant bureaucrats who claim to be protecting employee privacy. The combination is curtailing public knowledge at a time when improving case rates have led many California businesses to call their employees back to non-socially distanced, mostly maskless workplaces.

Vaccinated workers face little risk, scientists say, but even for those workers, the situation is harrowing.

“They’re scared to death,” said Maggie Robbins, an occupational and health safety specialist with the Oakland-based worker advocacy organization Worksafe. “They’re scared of bringing it home to their kids, their home, their mother. People need to have information about what’s going on in a pandemic.”

The material collected by this news organization, incomplete as it is, shows the value of workplace transparency: Contra Costa County said for the first time that 171 cases occurred at a HelloFresh food delivery warehouse last summer, a revelation to workers there. The number of cases in Amazon facilities exceeds 1,700 in just five counties.

In contrast, Trader Joe’s employees in the South Bay still talk in anxious tones about having to work in a short-staffed store after a July outbreak. Nearly a year later, Santa Clara County has released no records about what happened.

This news organization requested specific workplace outbreak data — including worksites, dates, locations and numbers of cases — from all 58 California counties and the three cities with their own public health departments. Only 20 released any material, with another four saying they had no workplace outbreaks, defined as three cases in a single location in a two-week period.

Seventeen counties flatly declined to provide records, arguing without evidence that naming employers who have reported outbreaks risks individual employees being identified. Thirteen did not respond despite numerous reminders. Seven have asked for additional time to produce records, even though each has had at least six weeks to respond, far longer than state law usually allows.

California’s ‘data vacuum’

California’s tight rein on workplace outbreak information stands in sharp contrast to its neighbor to the north, Oregon, which has long publicized workplace outbreaks. The Golden State’s largest county, Los Angeles, has posted outbreak information online since the beginning of the pandemic.

Intending to spread the practice, Assembly Majority Leader Eloise Reyes last summer pushed legislation to standardize collection and publication of outbreaks in the state’s places of employment. Reyes, a Democrat from the Inland Empire, was especially concerned about essential workers who had no way to avoid workplaces that might be rife with infection.

As the annual legislative session entered its final month, insiders say Reyes’ bill became muddled as it raced against a tight deadline after weeks of back-and-forth between worker advocates and business lobbyists. Language explicitly requiring that the state publicize outbreaks by location was slashed at the last minute.

Reyes has introduced “cleanup” legislation this term. In the meantime, California counties are operating under drastically differing interpretations of the law.

In response to the requests, four counties — Alameda, Monterey, Mendocino and Placer — argued that Reyes’ bill actually bars them from publicizing workplace outbreaks. They point to a phrase in the legislation that cites “the need to protect the privacy of employees from the public disclosure of their personally identifiable information.” Thirteen other counties made more generalized privacy arguments.

Alameda County’s argument is especially curious given that it was forced to disclose infection numbers at Tesla under the sweeping court ruling on a mid-2020 lawsuit brought by the Bay Area News Group.

In a brief statement, the California Department of Health asserted that counties are interpreting AB 685 “as outlined in statute and legislation.”

“The Legislature was very clear on the question of balancing the needs of public disclosure with privacy concerns of individuals,” the department said.

But Reyes said in a statement that her bill was never intended “as a blanket prohibition on the sharing of outbreak data.”

Legal experts note that such data is clearly open under the state’s public records act, saying it’s far-fetched to suggest someone could identify an infected worker simply from knowing their place of employment.

“That’s a real stretch,” said David Snyder, executive director of the First Amendment Coalition, of the counties’ objections. “This data is at a high enough level that it’s hard to imagine how it could lead to the identification of an individual as COVID-19 positive.”

A spokesperson for the Los Angeles County Department of Public Health said that county has never received a complaint regarding identification of an individual based on its posting of workplace outbreak data.

And one prominent epidemiologist argues that by not releasing the data, health departments are protecting negligent employers rather than the vulnerable employees whose interests they claim to have in mind.

“You could know, ‘Oh, there’s a bunch of cases, they have these demographics and live in these neighborhoods,’ but unless you know they’re clustered in the workplace, you don’t know what to do about those cases,” said Dr. Kirsten Bibbins-Domingo of UC San Francisco. “What we want to have is actionable information, so that workers and the public can take steps, but also, that we can use this information to say, ‘Wow, we have to do more.’”

What the records show

The 20 counties that did provide detailed records to this news organization revealed many outbreaks that have never before been publicized.

Though the records cover disparate geographies — and counties reached different conclusions about what time periods were covered by the law — they show how COVID hit dozens or hundreds of people at once in quickly erupting outbreaks around the state.

The virus has struck both big-box and mom-and-pop grocery stores, commercial farms, distribution centers and warehouses, casinos, auto retailers, motels and fast-food restaurants, along with government agencies like correctional facilities, Cal Fire stations, sheriff’s offices and county courts.

Only a handful of these companies have been fined for COVID workplace safety violations by California’s Occupational Safety and Health Agency, which does release records publicly but has been sharply criticized for lax enforcement and paltry fines.

The previously undisclosed outbreaks include the 171 cases reported at the Richmond HelloFresh last July, 187 cases at a newly-opened Amazon facility in Riverside County’s city of Beaumont in January, and 50 cases at an air conditioning company in Vacaville.

The records also reveal the extent of outbreaks already reported in the media but for which no firm numbers were made public.

An analysis of county records shows that e-commerce giant Amazon has reported more than 1,700 cases at warehouse, distribution and grocery facilities in Riverside, Solano, Contra Costa, San Joaquin and Kern counties.

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