In the pandemic’s early days, employees of a Pennsylvania food processing plant believed they faced an immediate threat. Their employer, they alleged, crowded them together and didn’t provide enough masks when the federal government promoted social distancing and face coverings.

They sued the Occupational Safety and Health Administration, hoping for relief. After first sending letters, an inspector visited the plant, named Maid-Rite, about two months later. While not standard procedure, the agency gave the plant advance notice because the worksite had “potential COVID-19 exposure,” as the inspector testified. Ultimately, the agency determined an imminent danger did not exist.

On Tuesday, the lawsuit reached its conclusion. A federal appeals court dismissed the lawsuit, but, in the process, it affirmed one of the “most imporant tools” for workers, as one former OSHA official has put it. 

That tool is the right for workers, if faced with “imminent danger,” to sue OSHA if the agency takes no action “abritrarily or capriciously.” While affirming that right, the court also said workers can only sue while OSHA is in the midst of its enforcement proceedings, which can stretch on for years. 

The workers’ attorneys — from the organizations Justice at Work Pennsylvania, Public Justice and Towards Justice — said it was the first time the “imminent danger” standard had been tested before an appeals court. 

“At issue here are the legal tools that workers have to protect themselves,” the attorneys said in a statement. “This decision gives workers a limited tool to protect their safety when OSHA is failing to do so, but it is a tool nonetheless.”

In its ruling, the Third Circuit Court of Appeals concluded the right to sue is a “narrow one” intended for workplace dangers that can’t wait for OSHA to finish enforcement actions. 

“We appreciate Plaintiff’s concern that this interpretation (of the statute) means that it will provide an avenue for relief in only limited circumstances,” the appeal court judges wrote in their judgment. “Yet it seems to us that such a limitation is exactly what Congress intended.”

Michael Felsen, who served as a U.S. Department of Labor attorney for about 40 years, said he disagreed with the Third Circuit’s interpretation of the imminent danger standard. However, the ruling largely preserves workers’ rights to sue OSHA if it acts “arbitrarily or capriciously.”

“It’s probably more of a victory than a loss,” he said. 

The ruling would appear to close the door on workers being able to sue, for example, in one situation where suing would be particularly appropriate, he said. 

Hypothetically, an OSHA inspector could enter a workplace and fail to see a pressing danger to worker safety — either on account of a policy choice by a particular administration or through inspector negligence. Then, the inspector could immediately close the investigation. 

In that scenario, workers would seem to not have the right to sue under the imminent danger standard as interpreted by the Third Circuit, even if the danger still exists, Felsen said. 

“It doesn’t make sense,” he said. “That’s exactly the situation when workers should be able to sue.”

However, it’s very unlikely OSHA would miss an imminent danger, and many enforcement proceedings can stretch on for years because employers contest citations, Felsen said. That gives workers a “big opening” to sue, he said.

In the Pennsylvania case, OSHA’s enforcement proceedings lasted for at least a couple months.

​​Steve Wodka, a workers’ rights attorney, said he thought the Third Circuit’s ruling was consistent with a previous case from the early 1970s, soon after OSHA was created in 1971.

Wodka worked for a union that sought injunctive relief against OSHA under the imminent danger standard — the first time any court had heard such a case, he said. The plant had an eroded pipeline containing a flammable gas under pressure, and the company said it would fix the problem during scheduled renovations. The judge ruled an imminent danger did not exist because the plant hadn’t blown up during the two weeks between the OSHA inspection and the hearing before the judge, so it did not pose an immediate threat to employees, Wodka recalled.

“The right (to seek injunctive relief) is still there,” he said. “This provision of the law is there for extreme situations. It acts like a relief valve, so to speak. But the lesson is that workers need to be ready to move quickly if OSHA fails to act.”

The original lawsuit was dismissed in March 2021. The judge’s ruling hinged on the meaning of the word “secretary” in the standard’s text.

OSHA’s lawyers argued that workers only had standing to sue if the Secretary of Labor himself ignored the recommendation of an inspector to alleviate dangerous workplace problems. 

Because OSHA had found no imminent danger in the workplace, the labor secretary had no opportunity to act “arbitrarily or capriciously,” the lawyers said. The judge agreed.

When the case was appealed, several former OSHA officials submitted a brief to the court. In it, they argued the judge had misunderstood how the imminent danger standard had been applied in the past. 

When the law referred to the labor secretary, it meant the agency and its employees, not the individual, according to the former officials. If the original judge’s decision stood, the standard would have been rendered “useless,” they said.

During the appeal process, OSHA’s lawyers “disavow(ed)” the agency’s original argument about when workers could sue, according to the Third Circuit’s judgment.

“We consider OSHA’s decision not to pursue this path to have been a wise one,” the appeal court judges wrote.

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