Workers can't force safety agency to do inspections, court rules

Mobile butcher Gerrit vande Bruinhorst works on a beef carcass in Picture Butte
REUTERS/Todd Korol
  • Agency not required to act absent "imminent danger," court says
  • Meatpacking workers can't force inspection over COVID-19 protections

(Reuters) - A U.S. appeals court on Tuesday said workers cannot go to court to force the federal workplace safety regulator to act after it determines that alleged hazards do not present an "imminent danger" to employees.

A unanimous 3rd U.S. Circuit Court of Appeals panel said workers at a Maid-Rite Specialty Foods LLC meatpacking plant in Pennsylvania could not require the U.S. Occupational Safety and Health Administration (OSHA) to inspect the facility where they claimed they were at risk of contracting COVID-19.

The case marked the first time that a U.S. appeals court was asked to decide whether workers can sue OSHA for declining their requests to inspect workplaces.

The 3rd Circuit panel said OSHA had no obligation to inspect the plant once an official concluded that Maid-Rite's policies did not pose an imminent danger to workers.

OSHA did not immediately respond to a request for comment. Nor did lawyers for three Maid-Rite workers who had sued the agency. Maid-Rite was not involved in the case.

The plaintiffs in a 2020 lawsuit said OSHA declined to physically inspect Maid-Rite's Dunmore, Pennsylvania plant despite their complaints detailing a lack of social distancing and personal protective equipment during the pandemic.

They said OSHA had a legal obligation to require Maid-Rite to implement protective measures. The workers were seeking an order requiring OSHA to conduct an immediate on-site inspection and "engage in all other actions and proceedings necessary to resolving all the imminent dangers."

U.S. District Judge Malachy Mannion in Scranton, Pennsylvania dismissed the case in 2021. Mannion said he lacked jurisdiction over the lawsuit because OSHA had never received a recommendation from an inspector to remedy an imminent danger.

Mannion, however, said he shared the plaintiffs' concerns "about whether OSHA is in fact fulfilling its duty to ensure workers' rights to safe and healthful working conditions."

The workers appealed and the 3rd Circuit on Tuesday affirmed, saying OSHA is vested with broad discretion to decide how to use its resources.

"The broad private right of action that Plaintiffs propose would undermine the OSH Act's agency-driven enforcement structure," Circuit Judge D. Brooks Smith wrote, referring to the law that OSHA enforces.

The panel included Circuit Judges Kent Jordan and Thomas Hardiman.

The case is Doe v. Scalia, 3rd U.S. Circuit Court of Appeals, No. 21-2057.

For the plaintiffs: David Muraskin of Public Justice

For OSHA: Amy Tryon of the U.S. Department of Labor

Read more:

Judge reluctantly lets OSHA off the hook to enforce COVID guidelines at meatpacking plant

Workers at Penn. meatpacking plant call for OSHA inspection in lawsuit

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at