When it comes to Gov. Kate Brown’s mandates related to stopping the spread of COVID-19, weeks-long closures of certain businesses have happened twice in Oregon, with other businesses during that time able to continue operating at reduced capacity or in a different manner.
For the past week, the newspaper has interviewed local businesses that have struggled with the closures, and are now adapting — some rapidly — in an attempt to survive. For some, this has meant alternative formats (think mid-winter outdoor dining). For others, it has meant going ahead and keeping doors open despite the mandate to stay closed. Staying open comes with the risk of being fined, not renewing or revoking a license and other actions that can be taken.
Since March, local and state health authorities have had to work on COVID compliance issues, including responding to complaints and reports of violations. Those complaints were generated both during and after the first closures in March, and another wave has come following the second closures that began Nov. 18, 2020.
On New Year’s Eve, Brown issued a statement regarding businesses which choose to ignore the mandates. She indicated those actions could put communities at risk for more positive COVID cases, thereby causing continuation of closures if numbers are within the governor’s ‘extreme risk’ metrics.
“If businesses reopen too early and instead create new spikes in COVID-19 cases, the actions of a few business owners could set entire communities back and keep them in the Extreme Risk category for even longer,” reads the news release.
It is noteworthy that Brown during the last week of December tasked the Oregon Department of Education with reopening schools, however, social distancing mandates are a top priority for returning to class.
Brown indicated that some politicians may have chosen to “willfully mislead business owners into jeopardizing public health and risking fines.”
Brown said local elected officials do not have the authority under Oregon law to disregard those emergency orders or to authorize anyone to do so.
“Any businesses that reopen in violation of state risk level requirements for their county will be subject to fines and enforcement,” reads the statement.
Brown urged all Oregon businesses to put the health of their communities first by following the guidance in their respective counties.
“I have directed Oregon OSHA and the OLCC to deploy all available resources to ensure businesses are in compliance,” she said.
‘It’s all complaint-based’So far, it is only complaints that are prompting local or state agencies into action.
When it comes to local businesses that may be operating in violation of Brown’s mandates, complaints are what generates enforcement, according to Craig Geddes, director for Malheur County Environmental Health.
“Any of the COVID enforcement type stuff is done on a complaint basis — it’s all complaint-based,” he said when asked whether his agency was out in force actively looking for local businesses which were not in compliance.
If his department receives a complaint, they will follow up even if the business is not licensed.
“We have an education letter and warning citation that we send them that we have a complaint and they need to comply,” Geddes said.
If compliance isn’t met after first letter goes out and another complaint is registered, it will be passed on to Oregon Occupational and Safety Hazard Administration.
If the facility is one his office doesn’t license — for example, a gym — “then OSHA will handle it.”
If the venue is one that is licensed through the Environmental Health department — for example, a restaurant or bar — the same process is followed up to sending the letter. After that, if another complaint comes in, “I will make a site visit, talk and reiterate the importance [of following the mandates],” Geddes said.
If a facility does not come into compliance after that, he said the next steps can include actions such as revoking a license, withholding a renewal or issuing a civil penalty.
“So far, I haven’t had to go down that road,” Geddes said.
He added that licensed facilities “have always been able to get compliant through education,” which is preferred by the agency.
Though Geddes did not provide the name of the restaurant or the reason for the complaint, he said there was one with which he followed up on a complaint by phone and a secondary complaint on site.
“I talked to them on site and since then, we have no further complaints,” Geddes said.
OSHA is inundated
In a typical year, Oregon OSHA receives a little more than 2,000 complaints, according to Aaron Corvin, public information officer with OSHA, but the pandemic outpaced nearly the last decade.
“Since March, we have received more than 18,000 COVID-related complaints,” he wrote in an email on Dec. 28. “We have been able to resolve many of these complaints without a formal enforcement visit.”
Due to the numerous complaints, a primary approach during the pandemic has been to evaluate them “and see if we can get things straightened out with employers in terms of the requirements.”
Taken into consideration are the “specificity and substance of the allegation,” whether the complaint is anonymous versus confidential, and the employer’s response.
“A confidential complainant is one whose identity we can protect but we know how to contact them, as opposed to an anonymous complainant,” Corvin said, explaining that with a confidential complaint, OSHA can check back with the complainant on the employer’s response.
“Employers that refuse to engage with us when we inquire about a complaint are more likely to see an on-site inspection,” he said. “Likewise if we get the sense that an employer is trying to sell us a bill of goods. And likewise for employers that openly defy standards that are in place to protect workers.”
As to whether OSHA has been avoiding rural areas, Corvin said the source of the complaint (metro versus rural) “doesn’t really determine where we put our resources.”
COVID-related citations have been issued throughout the state, he said, sometimes in situations where they employer has chosen to disregard the requirements to protect workers.
In Malheur County, there was one COVID-related inspection in 2020 that led to a fine for what was deemed a “serious” violation. For that business, described as “gasoline stations with convenience stores” operating under the legal name of Jimmy Simpson and Janice Simpson, the complaint was opened on Aug. 26. The investigation was closed on Sept. 10 and on Oct. 9, Oregon OSHA cited the owners $105.
The reason, according to information from Corvin, was that on or about Aug. 19, 2020, and continuing each day afterward, the employer “did not provide all health hazard control measures necessary to protect approximately five employees working inside the retail establishment from potential exposure to the known serious health hazards of the infectious coronavirus (COVID-19).”
Ensuring customers and employees wore face coverings, limiting the number of customers in the store, and social distancing were cited as not provided by the employer, nor were postings about COVID-19 health related information, according to the OSHA.
Other examples of recent fines handed out by Oregon OSHA, include Courthouse Club Fitness, a Salem fitness club, that was fined $90,000 for willfully violating the mandate by operating throughout the most recent freeze. In this case the amount included $22,500 for each individual inspection, which included $17,500 for being open to the public and another $5,000 for violating Red Warning Notices that had been posted by OSHA at each of the gym’s locations.
According to information sent from Corvin, the gym had stressed following social distancing mandates.
As of late November a total of 50 businesses throughout the state had been issued citations for not complying with OSHA rules designed to protect employees, with fines ranging from $100 to $2,000 for lower-level citations, and much higher for willful violations.”
Brown says she expects state agencies to continue the education-first approach, and for those businesses refusing to comply she said administrative action can include citations, fines and Red Warning notices.”
When it comes to facilities that stayed open during the first or second freeze in 2020, Geddes estimates they’ve followed up with about three or four that stayed open.
“And all but two are now, as far as I know, no longer operating outside the rule,” he said.
When businesses were allowed to reopen throughout the summer, Geddes said his department was getting one or two complaints each week of businesses that were not enforcing masks for customers.
“It doesn’t seem like we’re getting as many now; hopefully that means people are coming into compliance now.
“We have sent a lot of letters,” Geddes said.
Following receipt of the letters, he said, the majority of people “seem to comply.”