Purportedly, despite workers’ “imminent danger” concerns expressed in their OSHA complaint over workplace conditions that substantially increase the risk of coronavirus spread, the agency refuses to conduct an inspection.
Three unnamed women and Justice at Work have filed a lawsuit in federal court in Pennsylvania against Labor Secretary Eugene Scalia and OSHA, asking the court for emergency relief forcing Scalia to protect workers at the Maid-Rite Specialty Foods meatpacking plant in Dunmore, Pennsylvania, from the “imminent dangers posed by a workplace that has failed to take the most basic precautions to protect against the spread of COVID-19.”
Desperate plea for action. The avenue that the plaintiffs chose in seeking relief underscores OSHA’s purported refusal to act despite its knowledge of the allegedly dangerous conditions. The plaintiffs are taking action under a federal injunction statute (29 U.S.C. § 669(d)), which provides that when the Labor Secretary arbitrarily or capriciously fails to seek relief to “restrain any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures,” employees or their representative may bring an action against the Secretary for a writ of mandamus to compel the Secretary to seek such an order and for other appropriate relief.
Basic precautions absent. Maid-Rite, which produces pre-portioned frozen meat products for schools, universities, nursing homes, and military bases, produces lunchroom meat “under conditions that pose an imminent danger to the workers through the risk of death or serious harm” from the company’s “failure to take basic precautions to protect workers from the spread of COVID-19 at the Plant,” according to the complaint.
Risks increased. The plaintiffs contend that Maid-Rite has instead adopted policies and practices that substantially increase the risks of spread of disease including:
- Failing to provide cloth face coverings;
- Configuring the production line in such a way that workers cannot social distance;
- Failing to arrange for social distancing in other areas of the plant;
- Failing to provide adequate handwashing opportunities;
- Creating incentives for workers to attend work sick;
- Failing to inform workers of potential exposures to COVID-19; and
- Rotating-in workers from other facilities in a way that increases the risk of spreading the coronavirus.
Slow the line speeds or reduce number of items. According to the complaint, Maid-Rite can change its dangerous practices—at a cost to its bottom line. For example, the company could space workers on a meat production line far enough apart to allow for safe social distancing if it either reduces line speeds or places less meat on the line moving at the same speed. This would permit employees to physically separate, as the number of individual tasks required to be performed at the same time would be reduced, according to the plaintiffs. It would also allow some of the people working on the line to take on a support role, taking the place of line workers when needed, thus permitting line workers regular breaks to care for their personal hygiene.
OSHA knows about the danger. According to the complaint, OSHA has known about the dangerous conditions for months. In a move unrelated to the current action, in early April, a worker at the plant filed an OSHA administrative complaint, telling OSHA that “because of Maid-Rite’s failure to protect its workers from COVID-19 ‘I’m scared to go to work every day I’m risking my life[.] . . . [I]t’s sad and scary[.] I’m sorry.’” But OSHA allegedly dismissed the complaint “based on Maid-Rite’s assurances that things inside the Plant were not so bad.”
Without knowing about this earlier complaint, the plaintiffs in this action allegedly filed their own OSHA administrative complaint on May 19, 2020, “asserting that the workers confront an ‘imminent danger’ in the workplace based on many of the same workplace hazards identified in the early April administrative complaint.” This complaint met all the requirements of a formal “imminent danger” notice, as laid out by the OSH Act, the plaintiffs contend.
No notice of exposure. Among other things, this imminent danger complaint reportedly explained how Maid-Rite practices have facilitated the spread of COVID-19 at the plant, including by “placing workers still recovering from the virus on the line and refusing to inform every worker who worked in close proximity to a person who had tested positive that they may have been exposed.”
OSH Act mandate. The complaint asserts that after receiving notice of an “imminent danger,” OSHA is mandated under the OSH Act to respond in one of two ways:
- “If upon receipt of such notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists,” or
- “If the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employees or representative of the employees in writing of such determination.”
OSHA, however, has neither made a special inspection nor notified the employees or their representatives in writing of a determination that there are no reasonable grounds to believe that a violation or danger exists, the plaintiffs contend.
COVID-19 complaints not considered “imminent danger.” The plaintiffs have repeatedly contacted OSHA by phone and letter, and even in late June, provided sworn employee declarations of the dangerous conditions, according to the complaint.
However, “Plaintiffs have been told by phone that OSHA refuses to treat any complaint regarding COVID-19 as an imminent danger complaint,” the plaintiffs said.
It’s a pattern. “OSHA’s seeming refusal to protect so-called essential workers—many of whom are low-wage workers, immigrants, and people of color—from the imminent dangers they face caused by Maid-Rite’s failure to expend the resources necessary to protect its employees is part of a pattern,” the complaint states. The plaintiffs allege that a Florida OSHA official recently told a worker who was complaining about workplace conditions that may contribute to the spread of COVID-19, that “OSHA is ‘not performing any inspections or any type of enforcement regarding coronavirus’ at the present time.”
Notably, under OSHA’s internal operating procedures, an OSHA inspection is a prerequisite to an enforceable OSHA action, the plaintiffs pointed out.
What else can we do? The plaintiffs allege that they have done everything else they can to get OSHA’s attention—and there is also the earlier complaint about the same conditions that should have piqued the federal agency’s interest.
“Plaintiffs cannot wait any longer for OSHA to act,” the complaint states. “Pursuant to the mechanism Congress created for the express purpose of situations like the one before the Court here,” the plaintiffs are asking the court “to order the Secretary, through OSHA, to obtain immediate relief from the imminent dangers the Worker Plaintiffs and their coworkers face every day they report to work.”
The plaintiffs filed their lawsuit in the Middle District of Pennsylvania; the case is No. 3:20-cv-01260-MEM.
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