San Jose Kaiser at center of Christmas Day coronavirus outbreak among California's top COVID violators

SAN JOSE, Calif. - The San Jose Kaiser at the center of what has become a deadly coronavirus outbreak just after Christmas is among the top COVID-workplace violators in California in terms of financial citations, according to a review of state records.

Cal-OSHA has fined the San Jose Kaiser a total of $85,375 for seven violations - four of them considered serious. The first round of fines came days after public health officials in the Bay Area realized just how serious coronavirus was in March of 2020, records show. 

These violations are separate from the much-publicized Christmas Day outbreak, which has now sickened 60 employees and killed one employee. 

And because of the most recent outbreak, Santa Clara County on Thursday announced that is is fining Kaiser San Jose $43,000 for not notifying the Public Health Department of the situation in a timely fashion. That same criticism is among the other previous Cal-OSHA violation allegations, documented from late March to June and filed in mid-October. 

The violations include:

• Failing to report a serious illness immediately.
• Failing to provide medical and exposure records in a timely manner to the division. 
• Providing respiratory protection N95 masks to staff after cleaning methods with chemicals that were not approved and without ensuring they were in working order.
• Kaiser San Jose’s "Aerosol Transmissible Diseases Exposure Control Plan" failed to incorporate all required elements.
• The COVID-19 specific training provided to employees failed to incorporate all factors for preventing infection. 
• Failing to provide Powered-Air Purifying Respirators to staff performing life-saving procedures on patients infected with COVID-19.
• Failing to investigate incidents of exposure.

In fact, two Kaiser hospitals made it to the Top 10 violators in terms of monetary fines among the 103 businesses cited so far for COVID-19 violations in the state, Cal-OSHA records show. In all, Kaiser hospitals through California make up 10 of the total violators. 

Specifically, Kaiser San Jose ranks 7th out of the total businesses cited and Kaiser Oakland ranks 8th, after being fined $78,300 with five violations, four of them serious. No other Bay Area business or hospital made it to the Top 10 list.

The biggest violator in terms of monetary fines is not a hospital; Cal-OSHA fined JobSource North America, a food wholesaler in Vernon, Calif., $108,450 for five violations. 

In a lengthy statement to KTVU on Thursday, Kaiser denied the allegations.

"KP disputes each allegation and all of the citations have been appealed," the statement read. "Importantly, they have absolutely nothing to do with what may have occurred at Kaiser Permanente San Jose on Dec. 25."

First, the hospital said the citations stem from last May and earlier in the spring, which was very early in the pandemic. For example, Kaiser noted, Personal Protective Equipment guidance has evolved as the nation grappled with national shortages.

"Our experts continue to monitor the evolution of our knowledge about this illness, and we have continued to update our protocols based on the published guidance of Cal/OSHA and respected public health organizations," Kaiser stated.

Second, Kaiser made it a point to note in these early days, some employees likely complained to Cal-OSHA, the state agency in charge with regulating workplace safety, when the virus was new and hospitals began grappling with the unknown disease. 

"We also observed early in the pandemic an effort by some labor groups to create and file OSHA complaints as part of their efforts to advocate for change in the then-current regulatory guidance," Kaiser stated.

Third, Kaiser pointed out that its medical facilities are all throughout the state, unlike other hospital systems.

"Not only does Kaiser Permanente have a significant number of large hospitals in California, we were also among the first to treat patients with COVID-19 – something that we are extremely proud of, but which also provided high visibility for these efforts," the statement read.

Since the Christmas outbreak, Kaiser said the hospital is continuing to use HEPA filtering of its ventilation systems and is deep cleaning and intensive disinfecting of the entire Emergency Department. 

Since Kaiser has formally appealed the citations, a state administrative hearing will be set on an expedited schedule, according to a Cal-OHSA spokesperson, who didn’t know the exact timing of the upcoming hearing. 

The Cal-OSHA spokesperson also would not confirm that a new investigation is underway stemming from what occurred on Dec. 25 in the emergency department of Kaiser San Jose, saying that information is confidential. 

However, the spokesperson wrote: "We can let you know that Cal/OSHA has ongoing inspections at the facility that look into subsequent illnesses and complaints."

The likely new investigation would look at how the 60 employees contracted coronavirus between Dec. 27 and Jan. 1, including a Kaiser San Jose employee, who was pronounced dead by Jan. 4 after a colleague dressed in an inflatable Christmas tree costume and walked through the emergency department in the hopes of cheering up her colleagues.

At first, public health officials thought that the fan inside the costume must have spread the virus far and wide. 

 Although the inflatable costume has been the focus of the source of the outbreak, Santa Clara County officials are now expressing doubt about its origin. 

"Certainly, there are components that are confusing to explain," County Executive Jeff Smith told San Jose Inside. "For example, if everyone was wearing PPE, how come it spread so fast?"

KTVU has not been able to learn the identity of the worker who died. Kaiser will not release any details about that person, and the coroner's office cannot release a name without knowing exactly what day the person died and the location of the death. 

Kaiser also said that it contacted 70 patients who were in the ER that day to warn them that they might have been exposed to COVID. 

The Santa Clara County Public Health Department is investigating. And Kaiser also said its staff is working with infectious disease specialists to figure out how the outbreak occurred.

"Given the prevalence of COVID-19 in our communities, it is often difficult to pinpoint the specific exposure leading to COVID-19 infection," the Kaiser statement said.

In addition to the Cal-OSHA citations, Santa Clara County has launched its own investigation into Kaiser San Jose’s Christmas Day outbreak. 

Public health rules require immediate notification about positive COVID-19 tests. But on Thursday, the county issued a statement saying officials learned about the outbreak in the news, not Kaiser, on Jan. 3. 

Therefore, the county plans to fine Kaiser $43,000; $1,000 for each instance the hospital failed to report, consisting of the 43 cases linked to the outbreak.

Kaiser Permanente said the hospital has received the county notice and its management is reviewing it in order to respond appropriately. 

Lisa Fernandez is a reporter for KTVU. Email Lisa at lisa.fernandez@foxtv.com or call her at 510-874-0139. Or follow her on Twitter @ljfernandez