‘These Numbers Seem Suspect’: Officials Didn’t Trust Foster Farms’ COVID-19 Data During Plant Outbreak, Emails Show

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Community members attend a memorial in Livingston, California for workers who died in connection to a major COVID-19 outbreak at a nearby Foster Farms plant. (Alexandra Hall/KQED)

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y the time Merced County public health officials were able to track down accurate information about a COVID-19 outbreak at a local Foster Farms plant last year, seven workers were already dead, and more would die in the following weeks.

In mid-August, when the California Department of Public Health requested the number of positive cases, hospitalizations and deaths that were tied to the growing outbreak at the company’s plant in Livingston, Merced County’s supervising epidemiologist Kristynn Sullivan passed along the data, with the disclaimer that officials had just learned of five previously unreported deaths on Aug. 14.

“They [Foster Farms] did not inform us of any hospitalizations prior to 8/14, and as you know they did not inform the additional five fatalities until 8/14,” Sullivan wrote in an Aug. 20 email.

Minutes later, Dr. Salvador Sandoval, the county’s health officer, sent a follow-up email saying he’d just been informed by a union representative that another worker at the plant had died the night before: “Foster Farms hasn’t let us know about him. So now we have 8 deaths.”

In newly released emails from that time period, Merced County health officials repeatedly expressed skepticism about the outbreak information they were receiving from the poultry company, saying they believed the company hadn't tested its entire workforce and was not providing reliable data. Ultimately, nearly 400 workers were sickened in connection to the Livingston outbreak, nine of whom died.

The information comes to light as Foster Farms argues, in an ongoing court case, that further oversight of the company’s efforts to protect its workers from COVID-19 is unwarranted.  It also arises amid recently confirmed reports of another major outbreak at one of the company’s plants in Fresno, where at least 193 workers were infected late last year. Two of those workers died from complications related to COVID-19 in January, according to a California Division of Occupational Safety and Health (Cal/OSHA) spokesperson, raising that facility's COVID-19 death toll to at least five.

The company argues it has aggressively implemented safety and testing protocols, and says it recently began administering the Moderna vaccine to 1,000 workers at the Fresno plant in partnership with the county's public health department and Vons Pharmacy.

Foster Farms did not respond to questions about the emails. An earlier statement from the company said it is committed to the health and welfare of its employees.

The emails, obtained by KQED through public records requests, show a county health department struggling to coerce Foster Farms to fulfill its obligations under California law and report the deaths of its employees to Cal/OSHA.

In one of the obtained emails, sent in July, a county health official urged the company to report a recent fatality to the state.

“I have been trying to reach out to you about this matter. It is required that this information be shared with Cal OSHA within 24 hours of the death,” county Epidemiologist Sydney Loewen wrote in an email to the company on July 22. “Please reach out to us ASAP. If we do not hear from you we will need to report the death ourselves.”

Two weeks later, on Aug. 5, a Merced County Department of Public Health directive instructed Foster Farms to implement a new COVID-19 testing protocol and report any hospitalizations to the county. The following week, after consulting state health officials, it asked the company to also report any known deaths. A day later, on Aug. 14, the company reported five more deaths.

Records show that prior to Aug. 14, county health officials had been made aware of some deaths tied to the outbreak, but not all.

Merced County Public Health Director Dr. Rebecca Nanyonjo-Kemp later told the county Board of Supervisors that the number of known COVID-19 deaths connected to the Livingston plant more than tripled that day.

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"This is one of the largest occupational fatalities experienced during COVID-19 in the state of California,” she said at the mid-September meeting. “This is not not a big deal. This is a significantly large deal."

It’s unclear if, or when, the company reported the deaths and hospitalizations of its employees to Cal/OSHA. The agency provided the number of deaths and hospitalizations reported last year in connection to Foster Farms' facilities in the region. KQED has requested and is waiting for clarification on which reports are specific to the Livingston plant. Failure to immediately report a workplace fatality, serious injury or illness to Cal/OSHA is punishable by a fine of at least $5,000.

The agency has recently come under fire from labor advocates and state legislators who say California’s system, which relies on employers self-reporting COVID-19 deaths and hospitalizations to regulators, has led to severe undercounting and inadequate data about outbreaks tied to workplaces. In an interview with The Sacramento Bee this week, a Foster Farms spokesman defended the company's record, insisting it had reported to the state at least 21 COVID-19 deaths tied to its California facilities.

Cal/OSHA has multiple open inspections at Foster Farms' California facilities and has yet to issue any violations or penalties in connection with the outbreaks at the plants in Livingston or Fresno.

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“The emails demonstrate that it was a challenge to get accurate workplace data from the employer,” Ana Padilla, executive director of UC Merced’s Community and Labor Center, said. “We can't wait for there to already be a massive workplace outbreak before any reporting happens. Workers deserve to know if their lives are at risk.”

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preliminary injunction issued by a Merced County judge on Jan. 29 requires Foster Farms to continue complying with 20 COVID-19 workplace safety rules, the latest development in a lawsuit filed against the company in December by the United Farm Workers union and two Livingston plant employees.

Foster Farms’ attorneys have argued the court order is an unnecessary overstep because Merced County’s health department and Cal/OSHA already exercise oversight of the plant.

But emails exchanged between late July and August show county health officials repeatedly expressed distrust of the information Foster Farms has reported about worker fatalities and infections.

State and county health officials involved in the July and August email exchanges did not respond to requests for comment. A CDPH spokesperson said the agency communicated at the time with local public health officials in all other counties where there are Foster Farms plants, “to offer technical assistance for workers protection and current or future outbreaks at other facilities.”

A Merced County spokesperson said the health department did not have anyone available to provide a response.

“The fact that these documents show pretty clearly that the county itself is concerned about their lack of transparency and the full truth of what they’re hearing, and the fact that they didn’t bother to report these deaths, is astonishing,” said Monique Alonso, one of the attorneys representing UFW in the civil suit against the company.

As of this week, 560 workers at the plant who were represented by the UFW voted to decertify the union. Elizabeth Strater, a UFW spokeswoman, said its civil case against the poultry company “will proceed.”

A truck rolls into Foster Farms' S. Cherry Avenue facility in Fresno on Dec. 9, 2020. A major outbreak at the plant late last year infected at least 193 people. A Cal/OSHA spokesman recently confirmed two more employees of the facility have died from complications due to  COVID-19 infection. (Alexandra Hall/KQED)

On Aug. 21, the day after county health officials learned of the eight total deaths, Foster Farms sent an email reporting that five workers at its Livingston plant had so far tested positive, of the 1,449 employees that it tested. But it said over a third of those test results were still pending. Robert O’Connor, the company’s veterinarian and senior vice president of technical operations, wrote to county health officials that “the prevalence detected is quite low.”

Several days later, Dr. Sandoval, Merced County's health officer, wrote to colleagues, "These numbers seem suspect. I will try to find out if they are only checking regular employees, and not temporary workers, which I suspect.” He added, “The positivity rate is also way below our testing positivity rate of 12.1% overall in the county.”

Foster Farms has argued in court filings that, despite outbreaks tied to its workplaces,  the testing positivity rate of its workers has been lower than the surrounding community.

That same day, while relaying to state officials the number of hospitalizations that Foster Farms had reported during a two-week period, Sullivan, the county's epidemiologist, wrote, “These are the numbers I trust the least. Because I don’t believe they have a consistent way of gathering this information.”

The emails show California’s public health department discussed reaching out to other local health departments where Foster Farms operates since it seemed to be difficult for county health officials to get information directly from the company.

“We’re thinking about putting out some messaging from CDPH to counties that have a FF facility in or around them to have them ask about employment at FF during case interviews,” Dr. Christina Armatas, a CDPH public health officer, wrote to county health officials on Aug. 22.

“It is darkly remarkable to see health officials discussing screening the public for Foster Farms employment as a risk factor in case interviews,” UFW spokeswoman Strater said. “This also shows that no outbreak is purely just a worksite issue — an outbreak is a public health issue that affects all of us. Workers and their communities deserve better. Essential should not mean sacrificial.”

Merced County personnel also requested that Foster Farms apply the more thorough testing efforts now being administered in Livingston to the company's other plants.

“We are creating a Statewide standard for managing COVID-19 outbreaks in food processing facilities,” Merced County Environmental Health Division Director Vicki Jones wrote to the company on Aug. 13. “It would be very beneficial and appreciated if you could share these protocols with the other Foster Farms processing facilities in California, as I understand they are now beginning to deal with similar challenges.”

A new law, AB 685, which went into effect on Jan. 1, requires California employers to notify local health departments of COVID-19 outbreaks, positive cases and fatalities.

“We learned more and more, the longer that we were involved in that bill, the need for a clear, statewide reporting standard and a clear, publicly available database of where outbreaks were occurring. And we didn’t have either one of those,” said Mitch Steiger, legislative advocate with the California Labor Federation, which co-sponsored and helped develop the legislation.

The new law also requires local health departments to send the state all employer-reported COVID-19 outbreak data. To date, CDHP has not posted any on its site.

“The obligation to report to local health departments began recently and we will be providing information soon,” a CDPH spokesperson said.

“This is pretty basic. We are trying to manage an infectious disease epidemic and the state public health department and the counties need good information to do that,” said Stephen Knight, executive director of Worksafe, an advocacy group. “This data needs to be collected and reported properly. It’s increasingly clear and very concerning that that’s not happening.”