The U.S. Court of Appeals for the Third Circuit has affirmed dismissal of a lawsuit challenging a determination by the Occupational Safety and Health Administration (OSHA) that conditions at a meatpacking plant did not constitute an “imminent workplace danger.” The court held that an individual cannot maintain a private cause of action for alleged imminent workplace danger once OSHA has concluded its investigation. The Third Circuit’s decision in Doe v. Scalia, No. 21-2057 (3d Cir. 2023), appears to be the first federal appellate court ruling on this issue.

The case arose out of an inspection request to OSHA by meatpacking plant employees who claimed that although the company had taken some COVID-19 preventive measures such as issuing masks and face shields, it had not done enough to ensure worker safety at the plant. OSHA conducted an inspection, but determined that “conditions at the Plant did not constitute an imminent danger”; therefore, it did not seek expedited relief available under the Occupational Safety and Health Act, 29 U.S.C. § 662, where an imminent workplace danger exists.

Plaintiffs promptly filed a complaint in federal court against OSHA and the secretary of labor, seeking emergency relief under 29 U.S.C. § 662(d), which allows employees in “imminent danger” to sue in federal court if the secretary of labor “fails to seek relief.” The district court dismissed the complaint, and plaintiffs appealed.

Examining the statute and its enforcement procedures, the Third Circuit held that, “Employee-driven relief … is available only during the pendency of OSHA’s standard enforcement proceedings.” Noting that “[i]n general, OSHA, rather than private litigants, is responsible for assuring workplace safety,” the court stated, “the broad private right of action that Plaintiffs propose would undermine the OSH Act’s agency-driven enforcement structure.” The court concluded that “the private right embodied in § 662(d) is a narrow one, limited to combating imminent workplace dangers that cannot await the conclusion of OSHA’s enforcement proceedings.”

This decision may deter unnecessary litigation filed by employees or unions where OSHA has determined that workplace conditions do not pose an imminent danger, or provide a basis for quickly dismissing such lawsuits if they are filed.