The US Court of Appeals for the Third Circuit Tuesday affirmed a ruling holding that the Occupational Safety and Health Act of 1970 (OSH Act) does not allow an employee to maintain an action against the Secretary of Labor seeking relief for dangerous working conditions after the Department of Labor (DOL) has completed enforcement proceedings.

Judge D. Brooks Smith wrote that the OSH Act does not allow a private right of action to continue once injunctive relief under Section 662 of the OSH Act is no longer available. Accordingly, the private right of action permitted in Section 662(d) of the act is “limited to combating imminent workplace dangers that cannot await the conclusion of OSHA’s enforcement proceedings.”

Three employees of Maid-Rite Specialty Foods, a meat-packing plant located in Dunmore, Pennsylvania, sued the Occupational Safety and Health Administration (OSHA), the DOL and the Secretary of Labor in his official capacity for failing to address alleged insufficient COVID-19 prevention measures at the plant. The employees asserted that Section 662(d) of the OSH Act granted employees the ability to challenge OSHA’s determinations on “imminent dangers” in the workplace, outside the time constraints imposed on injunctive relief. The District Court for the Middle District of Pennsylvania dismissed the complaint. The appeals court affirmed the district court’s dismissal, holding that Congress intended to provide a “limited mechanism” to address imminent work place dangers that cannot await the conclusion of OSHA’s standard enforcement process.

The employees filed suit on July 22, 2020, after OSHA informed their employer that it would inspect the plant the following day. During the proceedings, OSHA acknowledged that such advanced notice is not its “typical practice.” However, OSHA stated that its need to protect OSHA employees from COVID-19 necessitated such notice. After OSHA’s inspection on July 8, 2020, the agency determined that the conditions at the plant “did not constitute an imminent danger.” In their complaint, the employees argued that the lack of surprise “allowed Maid-Rite to direct its employees to change their conduct and created the appearance that the Plant was closer in line with the OSHA and CDC COVID-19 mitigation guidance.”