Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/05/Jane-Doe-v.-Eugene-Scalia.pdf">Jane Doe v. Eugene Scalia</a>,</em> appearing in front of the Court of Appeals Third Circuit, plaintiff Jane Doe presented a matter of first impression to the court which found that the OSHA Act mandates the dismissal of a §662(d) claim once the Department has completed its enforcement proceedings.</p>
<p style="text-align: justify;">The case decided whether Section 13(d) of the OSHA Act gives employees a private right of action to remediate dangers in the workplace specifically, whether an employee may maintain an action against the Secretary of Labor seeking relief for dangerous working conditions after the Department of Labor has completed enforcement proceedings.</p>
<p style="text-align: justify;">Plaintiffs are employees at a Meatpacking Plant located in Dunmore Pennsylvania. The Plant’s workers argued that they were exposed to COVID-19 for the first time in early 2020. As the virus spread, plaintiffs became concerned that the Plant had taken inadequate COVID-19 prevention measures. Plaintiffs notified OSHA who proceeded to conduct a “non-formal” inspection which proceeded through a document exchange. Plaintiffs repeatedly notified OSHA expressing dissatisfaction with the inspection, which they claimed had not addressed the dangers they were facing.</p>
<p style="text-align: justify;">In the OSH Act of 1970, Congress created the Occupational Safety and Health Administration (“OSHA” or “the Agency”) to develop and enforce workplace safety standards. In general, OSHA, rather than private litigants, is responsible for assuring workplace safety. In furtherance of that objective, the OSH Act funnels safety grievances through OSHA’s administrative processes. Various sections of OSHA establish authority to conduct workplace inspections, authorize the ability to issue “citations”. In addition to the OSH Act’s standard enforcement procedures, Congress also provided expedited mechanisms in § 662 for remedying workplace hazards requiring immediate attention. The expedited mechanisms provide that the Secretary may seek injunctive relief against an employer and an employee may seek a writ of mandamus against the Secretary to address “imminent danger[s]” in the workplace. Id. § 662(a), (d) and, in relevant part here, § 662(d) authorizes a limited private right of action.</p>
<p style="text-align: justify;">In its decision, the court held that § 662(d) “private right of action” gives no indication that Congress intended the “such further relief” language to permit employees to challenge OSHA’s determinations outside of the imminent-danger context. Instead, the “such further relief” language is linked to the injunctive remedy. Id. § 662(d). In deciding this the court acknowledged that it appreciate Plaintiffs’ concern that this interpretation of § 662(d) means that it will provide an avenue for relief in only limited circumstances but affirmed that such a limitation is exactly what Congress intended in enacting § 662. The proper reading of § 662 is that Congress inserted § 662(d) as a safeguard against a failure by OSHA to address an imminent danger while its own enforcement proceedings are ongoing.</p>
Thanks to Dominika Rybaltowski for her contribution to this post. Please contact <a href="haquino@wcmlaw.com">Heather Aquino</a> with any questions.

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