A Beloit restaurant worker died in a Covid-19 outbreak. Throughout the pandemic, worker protections often left behind

Airing Sunday, Feb 27 at 10pm on News 3 Now and Channel 3000.

Loved by all who knew him, James “Yoda” Fisher of Beloit was just weeks away from his 42nd birthday when he died on November 22. He had tested positive for Covid-19 in an outbreak at the restaurant where he worked. He’d worked at Palermo’s Pizza his entire adult life before he tried to leave last year. His sister and coworkers say his boss, the restaurant owner, persuaded him to return.

The family still hasn’t received the death reports, but a medical examiner told his sister it looked like he’d had a heart condition that was exacerbated by the virus.

“Yoda was the last person that deserved this,” Lisa Steffens said. She quit working at Palermo’s Pizza in August, after she says owner Peter Gabriele told her to stay at work while she was throwing up and running a fever. 

“There were other drivers that had complained about not feeling well, and they were told they either come in and do their job or they were fired,” she said. Another current employee, who was granted anonymity due to the risk to their job, said drivers were told they’d be fired during the outbreak if anyone else said they’d tested positive for the virus. Employees testing positive, including James, observed quarantine. But the pressure to work while getting sick–or without getting tested–remained, as another current employee said happened to her the time of the outbreak.

“I had like a sore throat, runny nose, a cough, and a fever of 101, 102. And I would tell Peter that, and he still wanted me to come in because we were short staffed.”

When reached for comment, the owner called the allegations made by employees and in reports to Rock County inaccurate and hurtful. Yoda, he said, was greatly missed.

Yoda was always very honest, kind, caring, thoughtful and protective of me,” he said in an email. “He was always the first one to come to the rescue, whenever there was an issue.  It’s rare to find someone who has all those qualities.”

His co-workers say James was well-liked, obliging to all, and kept to himself; his sister Christina says he rarely talked about work to her. He knew that talking to her about the conditions there would only upset her, she told News 3 Investigates in an email exchange. He had few friends outside of his coworkers.

“That man would do anything for anybody,” one employee reflected. “He’d give the shirt off his back to help you…Yoda was the most kind-hearted person you’d ever meet.”

James would frequently work long hours and six-day weeks. The day he worked before he got tested for Covid-19, she saw a text exchange between Yoda and his boss where Yoda told Gabriele he had a fever and worried about being at the restaurant. She didn’t see Gabriele’s response.

Employees there at the time say “everyone knew” he was ill.

“Everyone could tell he was getting sick–sweaty, pale,” an employee working there said. “And [Gabriele] still had him in there working. And he finally lets him stay home. And he dies less than a week later.”

James went to get tested for Covid-19 November 17, according to his sister. That was a Tuesday. Friday, he got his positive results back. Sunday, he died. News 3 Investigates can’t confirm where he got the virus, but family and coworkers say he spent nearly all his time at work.

Near the beginning of the outbreak and then again three weeks later, a total of three people–one anonymously, and two non-employees–reported concerns to the Rock County Health Department about people working there while sick. Peter Gabriele told the health department he was observing safety procedures. The health department didn’t visit the restaurant.

“We could have tried preventing it from spread,” an employee said. Employees wore masks, although drivers weren’t required to, they said. But workers there cited sanitization and social distancing as issues, and mask wearing was at times inconsistent.

Local public health oversight: What they did and didn’t do

Twice, the Rock County Health Department fielded complaints labeled as ‘critical’ about the restaurant during the outbreak. But the department never issued the restaurant a citation, made an on site visit, or invoked other enforcement measures outside of contact tracing quarantine orders and describing safety protocols to the owner.

The first complaint came on November 17, five days before James’s death and after he had started quarantining. “Palermos Pizza has sick people working,” a caller reported. 

Three days later, the health department reached out to the owner. Gabriele denied having anyone working while sick and said they were following all approved safety protocols. 

“Staff have been taking extra precautions to safe guard the health of staff and patrons,” Gabriele told investigators.

The health department told him to close the restaurant and deep clean the facility, and make sure close contacts of positive cases self-isolated. Current employees say the restaurant closed for a few hours two days after the phone call to deep clean–the day James died, and days after he and others started getting sick. 

Rock County closed its investigation after the phone call without an on-site visit. An environmental investigator said employees were contacted as part of contact tracing efforts during the outbreak, and that nurses would have handled any reports of people who had worked while sick as part of the process.

Almost three weeks after the first complaint, Palermos was reported again. Two other callers told the health department on Monday, December 7, that the restaurant had “people sick with Covid working.” Again, it was another two days before reports indicate the department took action. And again–the complaint investigation lists a single call to the owner. 

“I called the facility and talked with the owner Peter about the complaints,” the report reads. “He said since the previous positive cases that they have been very careful to ensure all staff are safe and healthy.”

A RCHD spokesperson said managing the flood of complaints, reports, contact tracing and new cases means prioritization about how and when to follow up on complaints like this, one the department described as a scenario where a variety of viewpoints make it difficult to make conclusive determinations.

The scale of the current pandemic on top of “normal” responsibilities makes this even more challenging with limited resources,” environmental health supervisor Matthew Wesson said in an email. “It is certainly a delicate balancing act given that public health covers a wide variety of issues that are constantly changing.”

Rock County public health supervisor Lori said they followed their protocols. 

“We followed our protocol and advised the owner on the practices of hygiene, commercial cleaning, mitigation through masking, distancing and hand hygiene,” she said in an email. 

Jurisdictional Overlap

There’s a gray area about who’s responsible for what when it comes to investigating complaints that can overlap into multiple jurisdictions. A disease investigation is the responsibility of public health, but restaurant facilities are licensed under the Department of Agriculture, Trade and Consumer Protection. (An earlier August 2020 complaint to DATCP about serious food safety and “nauseous worker” concerns at a different restaurant owned by Peter Gabriele was passed to Rock County Health for review. Online inspection records record no citations issued then, either.) 

Additionally, worker safety complaints during the pandemic also fall under OSHA oversight.

No one reported workplace safety concerns about the restaurant and repeated complaints to OSHA. In fact, public health officials aren’t required to report concerns to OSHA, according to that DHS outbreak investigation guidance. “Anyone can file an OSHA complaint,” the DHS business outbreak guidance manual reads, obtained through an open records request. “There is no responsibility to do so.”

Wisconsin law gives local health officers fairly broad powers to enforce quarantine orders and health directives in the interest of public health. DHS guidance says the law as explicitly stated stops short of shutting down an individual business, and may require a court order to do so. 

Madison-area senior employment attorney Colin Good says a scenario where employees are being expected to work through symptoms represents a clear OSHA violation. But it’s also a scenario where frequent breakdowns during the pandemic have occurred: the gap between state and federal legal protections to a safe work environment, and the enforcement of those protections.

“An employer has to feel emboldened to do this to employees,” Good said. “And oftentimes, employers feel emboldened because they know that OSHA isn’t going to come and shut them down. And their local health departments aren’t going to come in and shut them down. So they bully their employees to staying and working in unsafe environments.”

“This is a familiar story”

Stories like these during the pandemic have become common to Restaurant Opportunities Center United, a national non-profit organization for restaurant workers. ROC United President and CEO Dr. Sekou Siby said his team has recently reached out to the family of a Black woman who died at work because she felt compelled to continue working through her symptoms.

“These are the kind of situations we hear a lot from our staff, from our members. And we don’t think it’s right,” Dr. Diby said. “Workers should be put at front and center, especially when we call them essential workers.”

An ROC United survey of more than 4,000 restaurant workers in 2010 found that 63% of restaurant workers report cooking and serving food while sick. Almost 90% don’t have paid sick days or health insurance, and a majority said they faced high rates of exposure to dangerous work environments.

“I think it has gotten a lot worse,” Dr. Siby told News 3 Investigates. “Because with the pandemic, many restaurant workers have lost their job, but those who went to work–they have to deal with people who didn’t want to wear masks.”

Food workers are often part of more vulnerable or marginalized communities, Dr. Siby said, with majorities of women, immigrants, undocumented workers, and people of color.

“There is a link between public safety and economic justice,” he explained. “Workers shouldn’t be made to make a choice between saving lives and feeding their families.”

Workers often left behind in enforcement of legal protections

In line with other states, the Wisconsin legislature included liability protections for schools and businesses in a Covid-19 relief bill passed by the Assembly and Senate and vetoed by Governor Tony Evers on Friday. Those protections would make it extremely difficult for employees or customers to sue a business because of Covid-19. 

More than 20 states have put some version of a similar law in place for businesses during the pandemic. Advocates say those protections are important for employers who have protected their workers in good faith; critics say it will close the door on legitimate lawsuits.

But for workers, the gaps in enforcement of legal protection are wide. James didn’t visit the doctor when he got sick, and the family wasn’t aware of a heart condition. James’s sister says he didn’t have health insurance–and Wisconsin small employers aren’t legally required to provide it. 

Laws like Wisconsin’s Fair Employment Act and the federal Occupational Safety and Health Act require employers to provide safe working places for employees, free of discrimination or violation. But Good says there’s frequently breakdowns in how those laws are enforced.

“A lot of these complaints are administrative complaints,” Good explained. “So they are housed in agencies within state or federal governments, which too oftentimes leads to a long delay in seeking any types of enforcement actions against employers. There are some paths directly into state or federal courts, but they are few and far between.”

For sick employees, there’s no federal or Wisconsin law that mandates employers provide paid sick leave. Until the end of 2020, the Family First Act provided tax credit and required certain employers to pay for Covid-19-related leave, but exceptions included employers with more than 500 or fewer than 50 employees.

And while private sector employees are told to talk to OSHA if they think their business is unsafe–the likelihood that any Covid-19-related penalties would follow is low. Businesses have safety guidance from the U.S. Occupational Safety and Health Administration to follow during Covid-19, but there’s no legal enforcement required for not following them–including under the most recent safety guidance issued by OSHA under the Biden administration. 

That could change. Under the Biden administration’s latest executive order for stronger safety guidance, OSHA has until March 15 to decide whether they will implement an emergency temporary standard, which would allow them to force businesses to comply with their Covid-19 standards or face penalties. OSHA frequently came under fire during the Trump administration for a lax approach to coronavirus regulations; so far, however, guidance has retained similar unenforceable language under new administration changes.

Since the pandemic began, there have been just four OSHA citations related to COVID-19 in Wisconsin. Nationwide, OSHA had issued 310 citations as of February 2, the vast majority of which were issued since the beginning of last September.

“OSHA was not on the forefront, and many states don’t have legislation that protects the workers, especially for safety reasons,” Dr. Siby said. “Who’s paying the price? It is the workers.”

Restaurants rank in the top three for Covid-19 related complaints, with 813 complaints submitted to OSHA nationwide. (Healthcare and retail were the two essential industries that ranked higher.) For all Covid-19 complaints nationwide, the Chicago-based OSHA region that includes Minnesota, Wisconsin, Illinois, Michigan, Indiana, and Ohio had the highest number of overall complaints. Nationwide, only about a quarter of all Covid-19 complaints have been docketed for investigation.

“OSHA’s not doing anything from an enforcement standpoint,” Good said. “So even through these avenues, employees sometimes get limited relief from the type of burdens that they have to shoulder in working in an unsafe environment.”

Covid-19 in Restaurants

Data on how restaurants in Wisconsin have been impacted by Covid-19 outbreaks has been scarce, and not publicly available through the state’s website. Currently under a temporary court order not to release outbreak data that would identify businesses, the state only publishes specific outbreak data connected to care facilities. That’s different from several neighbors, with the exception of Iowa. Michigan reports Covid-19 outbreaks by industry and setting–including restaurants. So does Illinois. Minnesota, while not directly on their website, has released outbreak data by industry–including restaurants.

However, a just-published study from the Center for Disease Control and Prevention sheds new light on outbreaks in various industries in Wisconsin, including restaurants. From March through the end of November, restaurants have not been a top category for outbreaks in Wisconsin, representing just over 4% of cases overall connected to outbreaks. However, that data includes the period when restaurants were closed under the Safer at Home order. During the summer, restaurant outbreaks were far more prevalent and represented more than 12% of outbreaks, with 1,633 cases linked to restaurant outbreaks from May 13 through September 2. There would be another 917 cases connected to restaurant outbreaks in the next two months, but the percentage compared to the rest of the state fell as outbreaks peaked at colleges opening for the fall semester.

The Wisconsin Restaurant Association says that when restaurants are run safely, the risk is low. Through the course of the pandemic, it’s been care facilities, colleges, correctional facilities, and food production and packing plants with the highest rates of outbreaks.

“When restaurants are employing all the safety protocols that they are supposed to be doing–the social distancing, the mask wearing, the hyper sanitization, etc.–the spread of Covid both with employees as well as with customers is actually very, very low,” said Kristine Hillmer, CEO of the WRA. “When you are operating a restaurant, it is really important to be doing everything you can to protect yourself, protect your staff, and protect your customers.”

But Hillmer also points out–in an ongoing thread of restaurant workers left behind in protections throughout the pandemic, they still aren’t on any list to get a vaccine in Wisconsin. Other food workers are–but restaurant workers are not, despite the CDC including them in federal recommendations for inclusion in Phase 1B.

James’s memory

His sister’s home where he lived and died feels emptier now. Christina’s youngest cat, Perky, has only recently stopped waiting at the bottom of the stairs for James to come down. 

Christmas was difficult for Christina. Both hers and James’s birthdays would have fallen in January; now, she and her husband only celebrated hers. Normally, James would have taken them to Texas Roadhouse in Janesville–his favorite restaurant.

“It’s still hard for me to talk about him, without crying,” she said in an email. He was eight years younger than her, and she’d helped raise him as they grew up. “We were all we had for family.”

Steffens says she’s struggling to understand what failed her friend and coworker.

“Why was Yoda’s death allowed to happen? When strict guidelines were given by the CDC, the health department?” she asked. “Nobody wants to listen. Nobody wants to do anything until after the fact.”

News 3 Investigates can be reached at news3investigates@wisctv.com