Today, the U.S. Court of Appeals for the Third Circuit issued an opinion in Doe v. Scalia on the question of workers’ ability to sue the Occupational Safety and Health Administration when the agency failed to protect them from COVID-19. The plaintiff Justice at Work and co-counsel Public Justice, Justice at Work Pennsylvania, Towards Justice, and Nichols Kaster made this statement regarding the decision:
“This is the first case to recognize that employees can use the courts to compel OSHA to protect them from imminent danger under section 662(d) of the Occupational Safety and Health Act.
At issue here are the legal tools that workers have to protect themselves. This Third Circuit decision affirms that workers can indeed sue OSHA when the agency is failing to protect them from imminent danger. However, it limits the time frame during which a worker can bring an action against OSHA: only during OSHA’s standard enforcement proceedings. This decision gives workers a limited tool to protect their safety when OSHA is failing to do so, but it is a tool nonetheless.
This decision also suggests that workers can sue OSHA whenever faced with a risk to their life or serious harm, in contrast to the district court’s opinion that held workers can only sue if an OSHA official’s recommendation to protect them has been overruled by a superior.
We are disappointed that the Court ultimately dismissed our case and that Maid-Rite meatpacking workers represented in this lawsuit will not get the relief they deserve. However, this decision affirms that workers have an important legal tool to protect themselves from workplace conditions that endanger their health and safety.”