State workplace safety officials have issued at least 48 fines totaling more than $900,000 since the start of the pandemic to Oregon businesses they say intentionally violated COVID-19 safety restrictions.
But those employers have ponied up only about $15,000 so far – totaling less than 1.7% of the amount they were collectively fined.
The situation illustrates the challenges that Oregon’s workplace safety agency has navigated as it has tried to hold employers accountable and the limitations it has faced in trying to ensure compliance during an unprecedented pandemic.
The Oregon Occupational Safety and Health Division received an onslaught of complaints – more than 31,000 in total – related to COVID-19 in a little over two years. In comparison, the agency, which has 85 enforcement officers and a $13.4 million enforcement budget, usually responds to only about 2,000 complaints per year.
The agency, known as Oregon OSHA, responded to those complaints by conducting roughly 750 inspections and issuing about 251 citations, according to data as of last month. The vast majority of those citations were issued to employers who the agency deemed had not intentionally violated COVID-19 safety rules and came with fines under $1,000. Most of those employers did not appeal their penalties.
However, businesses the state says intentionally flouted COVID-19 safety restrictions almost invariably appealed their citations.
The appeals process typically takes more than a year and up to 30 months to resolve, said Mark Peterson, a spokesperson for the Department of Consumer and Business Services. Historically, more than 40% of Oregon OSHA fines have been amended on appeal. That means many of the businesses that the state says committed the most egregious COVID-19 violations will be able to delay their fines for several years and could end up paying significantly reduced penalties after their appeals are resolved.
Oregon OSHA has little power to force businesses into compliance during the appeals process, beyond telling them to remedy violations. Even after receiving citations, some businesses continued to defy COVID-19 restrictions during the height of the pandemic.
The agency issued five citations to one gym chain, Salem-based Courthouse Club Fitness, after the gym remained open in November 2020 against state health regulations and continued operating even after receiving multiple citations. Owner John Miller at the time called the state’s decision to shut down gyms unreasonable and said its actions were bankrupting businesses.
In total, Oregon OSHA fined the gym chain more than $217,000 – the largest COVID-19 fine issued to a single employer. A year and a half later, though, the citations remain tied up in the appeals process.
In fact, of the 48 citations issued by Oregon OSHA for willful COVID-19 safety violations, 42 remain in the appeals process. The other six have become final orders, but one of those fines was reduced by half on appeal and no payments have been made on three others.
Lindsey Graham, the former owner of Glamour Salon in Salem, opened her business in defiance of Gov. Kate Brown’s public health orders in May 2020 and was fined $14,000 by the state for flouting COVID-19 safety rules. She said the state greatly overstepped its authority by forcing small businesses like hers to close and contended that no one at her salon ever tested positive for COVID-19.
She also maintains that the stylists who worked at her salon were independent contractors, not employees, meaning that Oregon OSHA shouldn’t have had the authority to fine her. Aaron Corvin, a spokesperson for Oregon OSHA, said the agency has jurisdiction to cite a business if they “conclude that there is an employer-employee relationship.”
Graham initially appealed the fine and also filed a lawsuit in December 2020 challenging Brown’s authority to shut down private businesses. She withdrew her appeal last September after she said she paid $35,000 in legal fees trying to fight the citation. And in December, she voluntarily dismissed her lawsuit against Brown after she said she spent $50,000 on the suit, much of which she raised through a GoFundMe campaign. She has since closed her business and moved to Arizona where she has rebranded herself as a conservative activist.
But even though she is no longer challenging Oregon OSHA’s citation, Graham said she has no plans to pay the $14,000 she owes the state.
“I believe it’s unjust,” Graham said. “I believe I did not do anything to earn that citation. I dropped the appeal because I didn’t want to continue to spend my family’s money fighting a citation I shouldn’t have to fight in the first place. But I have no intention of paying that citation ever.”
Since withdrawing her appeal nine months ago, Graham said she hasn’t heard from Oregon OSHA, even though she hasn’t paid them any money to date. Corvin disputed that claim. He said the agency has tried to take steps to collect on the fine, including reaching out to Graham about setting up a payment plan. He said the agency sent a demand notice to the salon in February after it didn’t receive payment, but learned the business address wasn’t valid since the salon had closed.
Shortly after that, the citation was transferred to the Department of Revenue for collections. Robin Maxey, a spokesperson for the department, said he couldn’t comment on the specific fine, but said the steps the department generally takes to try to collect payments can include reaching out to employers via letter or telephone, setting up payment plans or in more extreme cases, collecting money via wage and bank garnishments.
However, Maxey was unable to provide any information on the percentage of fines referred to the Department of Revenue that are ultimately collected or the average time it takes for the department to collect fines referred to it by other agencies.
At least two other businesses fined for willful violations, Forage Coffee in Medford and Country Bakery in Halsey, have had their citations transferred to the Department of Revenue after missing multiple deadlines to begin payments to Oregon OSHA.
Loretta Birky, the owner of Country Bakery, declined to comment to The Oregonian/OregonLive. She was fined $9,000 in May 2021 for intentionally failing to ensure masks were worn inside the bakery and failing to display a “COVID-19 Hazards Poster,” according to Oregon OSHA documents. She did not appeal the fine but also didn’t make efforts to pay it. Corvin said the fine was transferred to the Department of Revenue for non-payment in October.
Forage Coffee was fined $9,250 in March 2021 for allowing customers to dine onsite against state health regulations and failing to ensure that people inside the cafe wore masks and maintained physical distance. Co-owner Jacob Terando said the cafe tried its best to follow COVID-19 regulations, but that the company struggled to enforce the rules when inspectors visited the cafe on Black Friday, a particularly busy day for the business.
Terando said he appealed the fine, but his appeal was dismissed after he missed the deadline to request a hearing. He set up a payment plan to pay about $770 a month to the state for the next year, but said he hasn’t paid anything yet because he is simply struggling to keep his business afloat as he navigates the impacts of inflation and more than two years of operating in a pandemic.
He said he has seen how slow government entities move as he’s gone through the citation process over the last year and a half and is hopeful he won’t face any additional consequences, even though he has missed the deadline to begin making payments.
“There’s no room in our budget to pay $800 a month to OSHA at this point,” Terando said. “I’m doing everything I can to keep my business open and I have other bills to pay right now that I have to prioritize above this fine.”
