(Charles Maldonado/The Lens)

The first employee infection at New Orleans Area Habitat for Humanity happened in mid-July. A few days later, it was followed by a second. 

Several Habitat employees who worked with the infected staff members wanted to take leave or work from home, fearing they might have been exposed to COVID-19. Allowing that would have been consistent with public health guidelines, as well as Habitat’s written COVID-19 policy, which had been distributed in the spring. But several employees told The Lens that managers there were sometimes hesitant to grant the requests.

“For us — we were like, I don’t understand why there’s such a strong demand for people to keep working, in particular when they don’t feel safe,” a former Habitat employee told The Lens last month.

One Habitat worker took a complaint to the Louisiana Department of Health, on July 21st. The department followed up by contacting the nonprofit group with guidance and recommendations for operating safely. But employees say little changed after that. Two more Habitat employees went on to test positive in the weeks following the complaint.

The contact with management was the end of the state’s involvement with the Habitat complaint, one of thousands that have come into state agencies over the past few months. The vast majority of those complaints have come without penalties for the businesses involved. 

Ensuring compliance with COVID-19 restrictions is a huge undertaking: There are thousands of businesses, limited public health staff, and ever changing rules. Even taking those difficulties into account, state enforcement has been noticeably cautious. What little action has been taken has been against restaurants and bars. No other type of workplace has been subject to any punitive enforcement actions from the state. But that’s not because of a lack of complaints.

As of last week, Louisiana residents had made at least 4,136 complaints to state agencies about violations of the governor’s emergency COVID-19 orders* since May, according to data provided by the Louisiana Office of State Fire Marshal.

But very few of those complaints have resulted in enforcement actions like citations or court-ordered closures for businesses found to be violating state orders, which strictly limit crowd sizes, reduce business’ operating capacities, and require customers to wear face coverings. 

The state enforcement process appears to be based substantially on people deciding to report concerns. And once a complaint is called in, the response is focused on education rather than compliance monitoring or enforcement actions. In at least some cases, the effectiveness of an agency’s response to a complaint is dependent upon an employer’s good-faith decision to thoroughly comply with the mandates, and err on the side of caution.

There are three state agencies responsible for enforcement — the Louisiana Department of Health, the Louisiana Office of State Fire Marshal, and the Louisiana Office of Alcohol and Tobacco Control. These agencies have yet to issue a single misdemeanor citation for noncompliance, though as of last month, state inspectors had conducted thousands of site visits and found hundreds of businesses with violations.

Other states appear to have stricter enforcement of their state’s COVID-19 mandates. As of early this month, the Texas Alcoholic Beverage Commission has suspended the liquor licenses of 75 bars that were in violation of the governor’s June executive order.

What enforcement has been done by the state of Louisiana has focused entirely on two types of businesses: bars and restaurants, officials with the Louisiana Department of Health and the Louisiana Office of State Fire Marshal confirmed.

Over the summer, LDH filed restraining orders against two restaurants — Firehouse BBQ in Livingston and Peking Buffet in Ruston — and the Louisiana Office of Alcohol and Tobacco Control suspended the licenses of, and fined, four bars for allegedly failing to comply with the governor’s COVID-19 orders. 

Other types of businesses — such as offices, food processing facilities or retail stores — appear to have escaped punitive enforcement altogether, though in some cases they have been subject to inspections. 

This relatively low level of enforcement can result from a finding that the businesses were technically following guidelines — or at least told state regulators that they understood the guidelines and would bring themselves into compliance — even when employees or others said they were unsafe, said Dr. Susan Hassig, a Tulane University epidemiologist. 

“If they are within the parameters of the guidance, there is not a lot of action that can be taken in many respects – if they are nominally conforming, then that is as far as it goes,” Dr. Hassig said.

The Lens has previously reported on the Balcony Ballroom in Metairie, the subject of at least five complaints for allegedly skirting the rules and hosting large wedding parties. That business has maintained that it has followed the state’s orders as they pertain to restaurants because it — unlike many other event halls that were subject to strict limits on indoor gatherings — has a restaurant license. 

And in June, LDH said it determined that a crawfish processor in Crowley was following state guidelines even after conceding that a “significant number” of its employees had tested positive for the virus, The Advocate reported. Outbreaks at food processing facilities have led to at least 770 cases that the state is aware of, more than any other type of business, according to LDH data published on the department website.

“That’s what happens when you chronically underfund a very important aspect of the government infrastructure,” Dr. Hassig said. “There aren’t enough bodies to do that kind of proactive assessment, so it is left up to institutions to do their best to establish processes and circumstances that conform. When they don’t, we get outbreaks.”

“Public health has always suffered from invisibility to the community at large, it is taken for granted,” she said. “When it is working, no one thinks about it or even knows it is there, thinks why do we need it?” 

Hassig said that funding for public health has long been low on the public list of priorities — both federally and in state legislatures, under Republican and Democratic control.

“When something goes wrong with the health of the community and prevention is needed more urgently, all the cuts and decreases suddenly become relevant — insufficient staff, possibly poorly trained staff, poor response infrastructure, etc. all of which are not easy to fix.”

July 21 complaint

Over the summer, The Lens was contacted by two employees working for the New Orleans Area Habitat for Humanity with concerns about workplace safety. 

They alleged that the organization was compelling staff members to come into work after they were in contact with coworkers who tested positive.

According to employees, the two supervisors who tested positive had routine contact with more than 30 staff members, including office workers and the construction crew. But at least initially, only a few of those people were cleared to work from home. Others were told they did not meet the group’s “exposure criteria,” even though they believed they did. One employee told The Lens that, in August, several employees with symptoms typical of the disease were regularly reporting to work.

A spokesperson for Habitat denied that this was the case, and stressed that it has taken steps to ensure a safe work environment.

“Habitat is an organization with a mission that is based in good behavior, and good behaviors internally, in treating people well and with respect,” said spokesperson Ellie Rand in an August phone interview. “No one in Habitat, if they’ve ever said that they’re sick, has been told to come to work.”

After four people tested positive for COVID-19 at the nonprofit in July and August, only some of their coworkers were considered by management to meet the CDC requirements for “close contact” and were allowed to work from home. Others, who said they believed they were exposed, say they were told they did not meet exposure guidelines, and would have to use vacation days if they wanted to stay home while they waited for test results. 

Executive Director Marguerite Oestreicher told The Lens via email, “Early on, there was confusion about what constitutes close contact.” She maintained that “NOAHH followed the CDC definition.”

Habitat employees who spoke to The Lens, on the condition of anonymity, said that a lack of clarity about the group’s policies created confusion within the workplace, and caused staff to worry for their health.

“Having a clear policy and a clear way to communicate in a pandemic is essential, this total chaos is dangerous and unsafe for both the employees and the community we serve,” one Habitat worker, who asked that their name not be published, told The Lens.

On July 21, the Louisiana Department of Health received a complaint about the ReStore home improvement store on Elysian Fields Avenue. ReStore is operated by the New Orleans Area Habitat for Humanity, the local affiliate of the international housing nonprofit Habitat for Humanity.

The complaint was made over the phone, not in writing, and LDH officials did not say specifically what the Habitat worker alleged. (The Lens has filed a public records request for the department’s notes on the complaint. The department has not yet provided the document.) But it came just after two senior Habitat managers informed staff they had tested positive, according to employees and Habitat management. 

In response, “LDH staff reached out to a manager and went over guidelines and recommendations about best practices in preventing spread of COVID in the workplace.” Louisiana Department of Health spokesperson Kevin Litten said.

ReStore is located next to Habitat’s administrative offices, where the two employees who tested positive worked. But at the time of the LDH complaint, none of the full-time ReStore workers were COVID-positive. It appears that because of this, LDH took no further action. Typically, when LDH receives a complaint of two or more ill employees in a workplace, sanitarians will refer the case to the department’s epidemiology team for a follow up visit, according to an LDH spokesperson. 

In addition to the two current employees who came forward, The Lens also spoke with two former employees who left the organization over the summer, as well as another staff member who is not an employee, but works full time on Habitat’s construction team and receives external funding. All asked that their names not be published.

Each of these individuals said they believed the organization unnecessarily increased their risk of exposure to COVID-19, and that the group was reluctant to allow staff to work from home who believed they were exposed. 

New Orleans Habitat for Humanity stated it has taken some drastic risk reduction steps since the beginning of the pandemic, including shutting down operations entirely from March to June, and making extensive modifications to the office and ReStore. It established an expedited PCR antigen testing service that would provide results within 24-48 hours for its workers. In addition, the nonprofit is no longer accepting volunteers.

Still, one employee characterized the attitude about the potential for workplace infection as “business as usual,” even after confirming COVID-19 cases among the staff. The employees said that determinations about who qualified as being in close contact with infected coworkers were made by management, and not always consistently.

Guidelines from the Centers for Disease Control and Prevention and the Louisiana Department of Health call for employees who have been in close contact with a person who has tested positive to stay home and quarantine for 14 days. And an internal Habitat policy distributed to employees in May said that anyone who reported close contact with an infected coworker would be asked to stay home.

Employees said Habitat wasn’t following that policy, and that management had not made it clear what the effective policy was. 

Oestreicher told The Lens, “as per CDC guidelines, anyone who came into contact with someone who tested positive was asked to stay home and quarantine. The confusion seems to lie around understanding/agreeing with the CDC guidelines.”

‘Exposure criteria’

Asked to clarify how the organization determined who meets its exposure criteria, Oestreicher told The Lens via email last month that “the determination about who has been in close contact is actually made by the infected person.” 

When asked how NOAHH would handle the situation in which an infected person did not believe they had contact with a coworker, but the coworker believed they had contact with the infected person, Annette LeBlanc, the organization’s CFO, appeared to walk back Oestreicher’s statement, saying the infected person “would not control [who gets to stay home]. If there is a conflict, we will make a decision on the side of caution.”

However, two employees who spoke to The Lens said that was not how Habitat handled the situation. 

“This isn’t what happened before. Since they keep changing policies, we don’t know what to believe,” one said.

In a Friday email to The Lens, Oestreicher appeared to contradict LeBlanc’s statement, saying that the infected person lists who they were in contact with.  “As per CDC guidelines, anyone reporting a positive test result is asked who they have been close to – and those individuals have been sent for testing, told to stay home and have been paid while awaiting results.”

She did not directly address what would happen if an employee believed they were exposed, according to the CDC definition, to a COVID-positive person, but the positive person did not believe they had been exposed to that employee.

While the content of the CDC exposure guidelines may be objective, in a workplace, regular people — in this case, supervisors — decide how to apply it. 

Current and former employees told The Lens that they felt that managers were interpreting CDC “close contact” guidelines unreasonably, to limit the number of staff members who were considered “exposed” and allowed to work from home or take leave while waiting for test results. Under the guidelines, “close contact” means within six feet for 15 minutes or more.

One employee told The Lens that a person who had an hourlong meeting with one of the first two positive employees — around the time she tested positive — was not considered exposed because the room was “large.”

Rand, the Habitat spokesperson, denied that any such hourlong meeting occurred.

“The only meeting close to that duration during the week before [the diagnosis] occurred [was] when [the supervisor] met with two employees in the conference room. That room is very large, about 725 square feet,” Rand said in a mid-August email.

She added that participants “maintain[ed] a social distance of ten feet or more.”

“The conference room utilizes a portable HEPA filtration device as an additional precaution. Neither of the employees who attended that meeting became ill,” she said.

Regarding Habitat’s handling of this incident, Hassig, the Tulane epidemiologist, said, “It gets really, really complicated.”

“There is a long duration there. It depends on where the infected person was sitting, where the other two people were sitting, and what the air flow in the room is to get to that HEPA filter,” she said.

But, Hassig said those employees, and others, should have been sent home to quarantine and get tested. 

“For me it is a no-brainer, let them work from home for two weeks,” she said.

When asked how she would characterize Habitat’s compliance with the coronavirus mandates — based on the employee accounts — Hassig said, “They are following the letter of the law but certainly not the spirit of optimal prevention.” 

The complaint process

Louisiana residents with first-hand knowledge of issues with a business can file complaints by calling them in to a state agency or by using a form on the fire marshal’s website

The complaint is then logged in the OpenSafely system, a database maintained by the Office of the State Fire Marshal, and they are color coded based on the type of issue present. 

According to LDH and State Fire Marshal officials, LDH’s sanitarians handle complaints regarding mask usage and lack of proper sanitation equipment and routine sanitation practices. The Office of State Fire Marshal’s deputies handle social distancing related issues, such as spacing between tables and overcrowding beyond an organization’s established limitation cap. ATC handles most bar-related complaints.

When a complaint is received, an agency will respond by either calling the organization or visiting them with an inspection. The response is “focused on education and clearing up any misunderstandings or confusion, first and foremost,” according to Ashley Rodrigue, director of public affairs at the State Fire Marshal’s Office.

“If violations are found, the business representative present will be informed about those violations, educated on the guidelines relative to those violations and required to remedy the violations on the spot.”

The agency will then conduct a follow-up visit. If the violations continue, “supervision will be alerted and several options will then come into play, depending on the level of non-compliance.” said Rodrigue. 

“The options include a citation for violating the governor’s order, a cease and desist order, and licensure revocation by LDH and/or ATC. The decision on what action to take will be determined on a case-by-case basis depending on the extent of the repeat violations found and will have to be given final approval by a panel of representatives of the involved agencies as well as representatives from the governor’s office staff,” she said.

‘There seems to still be no plan in place’

So far, around 90 percent of all state inspections, including inspections in response to complaints, did not uncover violations, Rodrigue said.

“I can tell you it’s actually not uncommon to have found complaints being unfounded or inaccurate as there has been a LOT of confusion, understandably, with what people perceive as violations and what the rules actually allow. Some examples include complaints that a bar is open and operating, but in reality, they received special permission from ATC to open; another is back when masking was just employees that were public facing,” she said.

”We would get people sending in complaints because they could see kitchen staff through a little window in a door not wearing a mask. People will complain about bands occurring outside, which is allowed. There have been an abundance of those type of instances.”

When asked why LDH did not take further action in the case of Habitat, LDH spokesperson Kevin Litten told The Lens, “Because we have not received any other complaints about this organization, we cannot comment on the specific situations [at Habitat] because we have not had an opportunity to investigate.”

He encouraged employees to file a complaint if they are concerned about how their employer is protecting workers and the public from exposure to COVID-19, and said, “we would certainly respond to the complaint.

Much of the state’s regulatory structure is based on business self-reporting. If an employee files a complaint against an employer they believe is unnecessarily exposing them to risk, the only result may be that a manager receives an educational phone call from LDH, as was the case at Habitat over the summer.

Two Habitat employees recently told The Lens that they weren’t aware of additional infections since the first four, but they remained concerned.

Last month, Habitat management assured The Lens they would circulate a new, updated COVID-19 policy soon. But as of last Friday, no new policy has been circulated, according to Oestreicher.

“There seems to still be no plan in place in case of someone getting very sick and needing accommodations,” one employee said. 

*Correction: A sentence in an earlier version of this story partly mischaracterized the nature of complaints received by the state. As originally published, it said that 4,136 complaints were about “workplace outbreaks and violations of the governor’s emergency COVID-19 orders.” The complaints included in that number were only related to alleged violations of the orders, not outbreaks, according to a spokesperson for the Louisiana Office of State Fire Marshal. (Sept. 26, 2020)