By Megan Shaked and Eric Conn

In a case of first impression, the United States Court of Appeals for the Third Circuit held that a limited private right of action included in the Occupational Safety and Health Act of 1970 (the OSH Act) is very narrow and it does not continue after the Department of Labor completes its enforcement proceedings.

The OSH Act does not provide employees or other interested parties with a private right of action against employers to enforce OSHA standards or OSH Act requirements against employers, but it does, in very limited circumstances, allow employees to sue OSHA for the agency’s failure to address workplace safety concerns under.  Historically, employees’ role in OSHA enforcement is just to observe workplace safety violations and lodge anonymous complaints with OSHA, requesting that OSHA conduct an inspection.  OSHA then makes its own independent determination whether there are grounds for safety violations; i.e., whether to issue citations.

One area where employees have a slightly more power is in the context of imminent dangers.  OSHA has authority under the OSH Act, when it identifies an imminent danger (or is informed of an imminent danger by a whistleblower-employee), to seek injunctive relief to promptly address the danger or stop work at the workplace.  In this rare circumstance—where the risk of danger in the workplace is “imminent”—employees can attempt to force their employers’ and OSHA’s hands by seeking a writ of mandamus against the Secretary of Labor to address the “imminent danger[s]” if OSHA is declining to act on its own accord.  Specifically, Sec. 662(d) of the OSH Act provides a limited private right of action for employees to compel the Secretary to seek relief should OSHA “arbitrarily or capriciously fail[] to seek relief” on its own.

However, per the OSH Act, and now as confirmed by the Third Circuit, such relief is available to employees only during the pendency of OSHA’s enforcement proceeding.  In Doe v. Scalia, the plaintiffs were employees at a meatpacking plant who alleged that OSHA failed to compel the employer to address inadequate COVID-19 mitigation measures. OSHA conducted an inspection and determined that the conditions did not constitute an imminent danger. The employees filed a petition seeking relief under the OSH Act’s limited private right of action. The federal district court dismissed the case, and the Third Circuit affirmed the dismissal, concluding that the private right of action is narrow and restricted to addressing imminent workplace dangers that cannot wait for OSHA’s enforcement proceedings to conclude.  Ultimately, the Third Circuit found that OSHA had already completed its enforcement proceedings, and once that happened, the employees’ private right of action was no longer available.

We prepared a more detailed review of Doe v. Scalia in this article for the Washington Legal Foundation.  Take a look for more information about this development and key takeaways for employers.