Bloomberg Law
Jan. 31, 2023, 3:43 PMUpdated: Jan. 31, 2023, 6:09 PM

Third Circuit Rejects Covid-19 Imminent Danger OSHA Claim (1)

Bruce Rolfsen
Bruce Rolfsen

A group of meatpacking plant workers lost their bid for a court order compelling the Occupational Safety and Health Administration to protect them from Covid-19 at their workplace, after the Third Circuit affirmed a lower court’s dismissal of the case.

The U.S. Court of Appeals for the Third Circuit on Tuesday by 3-0 vote upheld U.S. District Judge Malachy Mannion’sMarch 30, 2021, ruling that he lacked jurisdiction to order OSHA to force Maid-Rite Specialty LLC Foods in Dunmore, Pa., to take the measures the workers sought after an outbreak there.

The Philadelphia-based appellate panel’s decision issued Tuesday adds another legal roadblock for worker organizations that believe federal law enables them to seek court-ordered safety and health inspections.

Judges Kent Jordan, Thomas Hardiman, and D. Brooks Smith joined the decision.

David Muraskin of Public Justice in Washington, who represented the Maid-Rite workers, said the decision keeps open options for others to use in imminent danger cases, even though the workers lost in this case.

Muraskin cited the court’s finding that under the law creating OSHA, the Occupational Safety and Health Act, employees can seek relief from the courts to force OSHA to take action “only during the pendency of OSHA’s standard enforcement proceedings.”

That holding allows employees to bring a case during the six-month window during which OSHA inspections must be completed, or in some cases during the citation appeal process, he said.

OSHA didn’t immediately respond to a request for comment on the decision.

Three anonymous women workers and an advocacy group, Friends of Farmworkers Inc., sought the appeals court action. They claimed an “imminent danger” from Covid-19 exposure existed at the Maid-Rite plant and that the OSH Act allowed the court to issue orders protecting workers and instruct OSHA to conduct an inspection.

Mannion, who sits at the U.S. District Court for the Middle District of Pennsylvania, had found that an OSHA inspector, who checked the Maid-Rite plant in the summer of 2020, and the inspector’s area and regional supervisors hadn’t declared that an imminent danger existed, so he couldn’t overrule their judgment. The inspection resulted in no citations against Maid-Rite.

OSHA had argued that, in addition to the court lacking jurisdiction, the six-month window to issue a citation following an inspection had passed. Because the inspection began in June 2020, it was far too late for OSHA to issue a citation.

The workers’ legal team countered that if the six-month restriction was upheld in an imminent danger complaint case, then OSHA could simply circumvent future worker claims of imminent danger by running out the six-month clock before announcing what violations were found.

The case had been argued before the Third Circuit on Sept. 7.

The case is Doe v. Scalia, 3d Cir., No. 21-2057, 1/31/23.

(Updated with comments from the plaintiffs' attorney.)

To contact the reporter on this story: Bruce Rolfsen in Washington at

To contact the editor responsible for this story: Andrew Harris at; Laura D. Francis at