OSHA Looks To Ax Pa. Meatpackers' Suit Over Virus Safety

By Matt Fair
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Law360 (July 29, 2020, 4:51 PM EDT) -- The Occupational Safety and Health Administration accused workers at a Pennsylvania meatpacking plant on Tuesday of trying to "hijack" its inspection process through a lawsuit aimed at forcing the facility to implement basic COVID-19 precautions.

The agency said in a motion to dismiss that a group of unnamed Maid-Rite Specialty Foods workers were improperly trying to force the government's hand despite inspections finding no imminent danger existed at the Scranton-area facility.

"This court should decline plaintiffs' extraordinary invitation to use judicial intervention to hijack the secretary's enforcement discretion and priorities and second-guess OSHA's judgment as it relates to occupational health and safety conditions at the plant," the agency said.

The employees, along with the nonprofit Justice at Work, filed suit last week, claiming at least half the plant's workforce had tested positive for COVID-19 as a result of lax social distancing on the production line, infrequent hand-washing breaks and a shortage of protective equipment.

Despite having made formal complaints to OSHA about the plant's purportedly lax practices, the workers said no substantial action had been taken by the agency to try to enforce safety standards at the facility.

One of the complaints filed against Maid-Rite — which produces prepackaged frozen meat products for schools, universities, nursing homes and military bases — included a so-called imminent danger complaint, which requires OSHA either to order an inspection or to notify the employees of OSHA's determination that there are no reasonable grounds to believe that a violation or danger exists.

But the workers said OSHA had done neither.

In its motion to dismiss the case Tuesday, however, OSHA and the U.S. Department of Labor said an inspector who visited the Maid-Rite plant at the beginning of the month did not find there was an imminent danger.

And federal law, the government said, only allowed employees to try to force OSHA action in situations in which the DOL secretary had arbitrarily or capriciously refused to take action on the recommendation of an agency inspector.

"No such recommendation has been made in this case," the government said. "Thus far, after multiple investigations and ongoing inspections, OSHA has determined that no imminent danger exists at the plant. And because OSHA has concluded that there is no imminent danger — and thus has made no recommendation that the secretary correct such a danger — there is no secretarial rejection of a recommendation for this court to review."

A judge is scheduled to hear arguments in the case Friday in Scranton.

Representatives for the parties did not immediately respond to requests for comment Wednesday.

The workers are represented by Lerae Kroon, Nina Menniti and Samuel Datlof of Friends of Farmworkers Inc. and Public Justice PC, Towards Justice and Nichols Kaster PLLP.

The government is represented by David Freed and G. Michael Thiel of the U.S. Attorney's Office for the Middle District of Pennsylvania and Kate O'Scannlain, Edmund Baird and Oscar Hampton III of the U.S. Department of Labor.

The case is Jane Does I, II, III et al. v. Eugene Scalia et al., case number 3:20-cv-01260, before the U.S. District Court for the Middle District of Pennsylvania.

--Additional reporting by Craig Clough. Editing by Stephen Berg.

For a reprint of this article, please contact reprints@law360.com.

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