A Foster Farms employee enters the facility on W. Belgravia Avenue in Fresno on Aug. 11, 2021. (Beth LaBerge/KQED)
The last time Eufracio Caballero was tested for COVID-19 at his job was the same day his employer, Foster Farms, sent out a statement with information about an outbreak at the plant where he worked.
The Dec. 4 press release said Foster Farms’ testing had identified 193 asymptomatic cases over the previous two weeks.
But the press release didn’t tell the whole story.
The company did not immediately report that two employees had recently been hospitalized, a California Division of Occupational Safety and Health investigation later found. Another employee had died from complications of the virus just days earlier.
The Dec. 4 press release is just one example of delayed or incomplete information Foster Farms communicated to health officials, state regulators, the public and its own employees about the scope and seriousness of outbreaks at its Central Valley plants, an investigation by KQED and The California Report found.
Over the course of the COVID-19 pandemic, 16 people have died and at least 20 more have been hospitalized in connection with the company’s facilities in California.
“The employer could have known and should have known of the continuing COVID-19 hazards,” at a plant in Fresno, according to a Cal/OSHA inspection file recently obtained by KQED. “These deficiencies posed a realistic possibility of causing serious illness or death.”
Foster Farms did not respond to a detailed list of questions seeking comment for this story. The company has previously said the health and safety of its workers is its highest priority.
By late last year, Foster Farms had installed Plexiglas barriers on at least some production lines, required employees to wear masks and touted its COVID-19 screening and testing efforts at their facilities in the Central Valley. But employees kept getting sick.
“I got bad news,” Caballero wrote in a message to his doctor on Dec. 6. He said he’d been regularly tested for COVID 19. “I did it again and now I am positive.”
Caballero was one of 285 employees who tested positive for COVID-19 at the company’s S. Cherry Avenue plant in south Fresno in early December, according to emails between the company and county health officials obtained through a public records request.
“It was awful to accept,” Caballero’s wife, Alma Ruth Hernández Núñez, said in a recent interview. “He was scared something like this was going to happen. And it did.”
A little more than two weeks later, Caballero, 58, was admitted to the hospital. Medical records show he was taken off a ventilator and died on Feb. 9.
Caballero had been a Foster Farms employee for 30 years. He processed paperwork for deliveries in an office where truck drivers shuttled in and out throughout the day, Hernández and her attorney, Ricardo Agustín Pérez, said.
“He got it at Foster Farms,” Hernández said. “He had told me a coworker always had a mask, but didn’t keep it on. He told me after they tested the employees, the man didn’t come back to work. Two weeks later, they tested the workers again, and that’s when he came back positive.”
About a year after the outbreaks, the families of the workers who died are angry at how the company and officials charged with protecting workers responded to the pandemic. In addition to mourning their lost loved ones, some are struggling financially.
Some have applied for state benefits. Others have launched GoFundMe campaigns or leaned on relatives for help with medical bills, the cost of a funeral or living expenses.
California workers are entitled to compensation if they suffer a work-related injury or illness. A worker who got sick with COVID-19 on the job and was hospitalized, but recovered, might file a claim for workers' compensation to pay for medical care.
If an employee died from complications of a work-related COVID-19 infection, their children, spouse and other dependents could be eligible for death benefits, one form of workers' compensation that pays a lump sum to the surviving dependents of a worker, depending on how many full or partial dependents they had.
In California, a death benefit pays $250,000 to $320,000, plus $10,000 for burial expenses.
Data obtained by KQED shows that at least 11 COVID-related workers' compensation claims have been filed by Foster Farms employees or their dependents. At least two have been settled.
In Hernández’s case, a family member put her in touch with a workers' compensation attorney, who is now representing her in a death benefit case.
“There must be tons of people who have no idea that they could even file a workers' comp claim, or they might not know definitely whether their family member got COVID at work,” Hernández’s attorney Pérez said.
With few advocacy groups specializing in workers' compensation outreach and education, advocates and attorneys said it’s likely some surviving dependents of workers who died have not pursued claims.
“I wish there was more information,” said Cheryl Wallach, a workers' comp attorney and board member of Worksafe, a nonprofit that advocates for the occupational health and safety of low-wage workers. “They may say, ‘Well, I don't know if I got it from work or not, so I guess I can't file a claim,' or 'I'm not going to be able to prove it's work-related.’ So I think that makes it even harder.”
'We are angry and confused'
On a recent morning at her home in Sanger, about a 20-minute drive east of Fresno, Alma Ruth Hernández Núñez went through her husband’s belongings, removing items one by one from the large, blue plastic tubs where they are now stored in a corner of the living room. Most were tools and building materials she hopes to sell to make money to pay her bills.
“It’s difficult for me to accept that he’s gone,” Hernández said. “To rely on my family and try not to spend what I have so I can keep going. And, well, I’m alone, and he’s not here anymore.”
After Eufracio Caballero's death, Hernández and her sister tore apart the couple’s home, searching for any scrap of paper that might indicate savings he left behind or the details of a financial plan made before his death.
“My sister relied on him for everything, and he’s gone,” Hernández’s sister Eva Brown said.
One of those employees became ill at work and notified a supervisor she wasn’t feeling well, but was told to finish her shift, according to an inspection case file obtained by KQED. She died on Nov. 25.
Another employee of the company’s W. Belgravia Avenue plant also died late last year, according to the company. Nine employees died after the earlier outbreak at Foster Farms’ Livingston complex.
In total, 16 employees who worked at Foster Farms plants in Fresno, Merced, Tulare and Stanislaus counties died due to COVID-19 and at least 20 others were hospitalized.
The Fresno County Department of Public Health, which conducted its own investigation and contact tracing, found 455 positive COVID-19 cases linked to the Cherry plant over a seven-month period spanning late last year and early this year.
In May, Cal/OSHA cited the company and four staffing agencies for alleged violations at its plants throughout the Central Valley, including failure to immediately report 10 hospitalizations and seven deaths due to COVID-19 among its workforce.
Additional citations alleged Foster Farms failed to effectively communicate about COVID-19 infections, outbreaks and deaths of employees to all workers who were potentially exposed, or to the company’s own management.
The company is now appealing those citations, the penalties for which total more than $450,000 and could be used as evidence to show the company knowingly put workers in harm’s way, exposing Foster Farms to further liability.
“While our family is grieving the death of our mother, we are angry and confused,” the website says. “We wonder if Foster Farms did enough to protect our mom from contracting such a deadly virus.”
“Why did they allow overtime when it increased the duration of exposure for employees? Were workers provided with adequate personal protective equipment, and did the company have protocols in place to ensure workers were being safe?” the website says. “Were there any attempts to decrease the number of workers per shift to reduce the risk of transmission?”
An attorney representing the family in a death benefits case declined to comment.
Foster Farms responded in court filings that the lawsuit offered “allegations based primarily on anecdotal declarations and news articles that grossly misrepresent the substantial safety measures that Foster Poultry has implemented.”
Jatinderpal Singh, 71, a former line worker at Foster Farms’ Cherry plant, equated the loss of his cousin, Baljinder Dhillon, 65, a mechanic at the plant, to losing an arm.
“My legs still shake,” Singh said in an interview on Aug. 11, speaking in Punjabi through an interpreter. “I still feel it, even today. Sometimes I feel weakness in my legs when I think about him.”
Like Caballero, both Singh and Dhillon tested positive for COVID-19 in early December. While Singh said he experienced minor symptoms, Dhillon was hospitalized with COVID-19 pneumonia. He was put on a ventilator and died several days short of his planned retirement at the end of 2020, a family member said.
After Dhillon’s death, Singh quit.
“If our life is not safe, what are we going to do with the money? They continuously call me to come back, but I told them I am not going to work there anymore,” Singh said.
'Fighting tooth and nail'
Under Senate Bill 1159, signed into law last fall, workers who got sick during an outbreak at their workplace are presumed to have contracted the virus at work. But insurance companies and self-insured employers can dispute that presumption by showing evidence a worker could have been infected outside of work — for instance, through a member of their household or at a social gathering.
COVID-related workers' compensation claims in California have been denied, on average, at more than three times the rate of non-COVID claims since the start of the pandemic.
Roughly 35% of COVID-related workers' compensation claims filed from January 2020 to the present have been denied, according to data from the state Department of Industrial Relations. Just over 11% of claims unrelated to COVID-19 were denied during the same period.
“These insurance companies are just fighting tooth and nail,” Hernández’s attorney Pérez said. “They want to make you prove that you actually contracted this virus at work, even if by reasonable medical probability it’s more likely than not that the person contracted it there — prove something that really is, in many ways, impossible to prove definitively.”
Having an attorney is especially crucial in a death benefits case, attorney Jennifer Scotto said. Scotto is a workers' compensation attorney representing the family of a former employee who worked at the Livingston plant and died from complications of COVID-19.
“If you don't have an attorney, I would liken it to being stranded in the middle of the ocean without a life raft," Scotto said. “You will really get bogged down in the system without legal counsel and you will not get the kind of settlement you’re entitled to.”
Many Foster Farms employees are Punjabi immigrants. The Jakara Movement, a Fresno-based group that advocates for the Punjabi community, has been doing worker outreach and education at flea markets, food drives and Sikh gurdwaras throughout the San Joaquin Valley since April.
Navdeep Kaur, a labor organizer with the group, said many people she encounters are unfamiliar with workers' compensation.
“A lot of these workers don’t know that this is an option, or their families don’t know,” Kaur said. “Especially since they’re immigrant families, they’re monolingual and ... at least within the Punjabi community, they’re elderly.”
Kaur said some are afraid to file for workers' compensation benefits.
“They have other friends and family working at the same place,” she said. “If one person filed something against these companies, then they’re afraid for the rest of the family.”
And she is concerned the one-year deadline for filing a claim will pass before families have a chance to apply.
Foster Farms consultant: 'No evidence' of 'significant spread'
One evening last December, Jatinderpal Singh was at home with his family eating dinner. Then a call came from Foster Farms, the family said. He had tested positive for COVID-19.
The family panicked. He, his wife, son, daughter-in-law and grandchildren immediately quarantined in separate rooms, but nearly everyone later tested positive. Singh’s wife, Joginder Kaur, also was hospitalized, she said.
Fresno County health officials asked Foster Farms management for their theories in early December about what caused the Cherry plant outbreak, public records show.
In response, company officials pointed to a number of factors — including workers’ ethnicity — that could have played a part. They did not address the possibility that workplace conditions might in any part be responsible.
Among factors that could have played a part, Foster Farms said, were a health insurance enrollment event in which 1,000 workers used the same phones over a two-week period and a sexual harassment training where employees gathered in groups of 35. The company also pointed out that it had recently been Thanksgiving and Diwali, a festival of lights celebrated by Hindus and Sikhs.
“It was reported that 24.8% of company employees have self-identified as Asian/East Indian,” the email says.
Six days later, Foster Farms sent a letter from The Acheson Group, a food safety consulting firm with close ties to the company, to the Fresno County Department of Public Health, explaining that a review of testing data from the plant showed employees who tested positive had worked while having symptoms and did not follow company guidelines.
Despite well over 200 workers at the Cherry plant testing positive for COVID-19, Dr. David Acheson, then-chairman of Foster Farms’ Food Safety Advisory Board, wrote that there was “no evidence” of “significant spread in the Cherry facility of SARS-CoV-2 in early December.”
He recommended that Foster Farms increase training for employees and warn them against attending large gatherings or other high-risk activities.
Cal/OSHA’s investigation completed five months later came to far different conclusions.
“COVID-19 hazards continued to exist due to the employer not effectively evaluating the hazards, and effectively protecting employees from changing conditions due to COVID-19,” the investigation of the Cherry plant outbreak found.
Cal/OSHA’s citations allege Foster Farms did not provide or enforce the consistent use of face coverings and that in some areas of the plants, employees were stationed closer than 6 feet from each other or not separated by barriers.
Cal/OSHA citations and any other signs the company acted with disregard for worker safety could be used as evidence the company acted with serious and willful misconduct, attorneys representing workers’ families said.
If accepted, a petition for benefits for serious and willful misconduct adds an additional 50% in penalties on top of workers' compensation benefits. Under state regulations, those added penalty amounts cannot be covered by insurance, meaning employers must pay out of pocket.
“It definitely would apply to the Foster Farms situation,” said Diane Worley, executive director of the California Applicants’ Attorneys Association. “A violation of a Cal/OSHA order is by definition a serious and willful claim.”
“I think, in general, employers are always going to try to fight those citations that they knowingly put workers in harm's way,” said Jennifer Scotto, the workers' compensation attorney.
Scotto filed a serious and willful misconduct claim on behalf of the family of a former Foster Farms employee who died from COVID-19. The claim alleges the company failed to provide face coverings to employees and that workers were not socially distanced, among other claims.
“They knew that these people were sick and there was no notification given to the other workers, so the workers were coming to work like a normal day, having no idea that they were being exposed to COVID,” Scotto said.
Hernández’s attorney, Ricardo Agustín Pérez, said he was also considering filing a serious and willful misconduct claim.
“If it’s true what our client’s family is telling us, that this employer knew that there were a lot of other people who got COVID around this time, then their responsibility would have been to take whatever measures necessary to make sure that the rest of their employees don’t contract COVID as well,” Pérez said.