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Law360 (December 9, 2020, 4:55 PM EST ) A group of workers told a Pennsylvania federal judge on Tuesday that the Occupational Safety and Health Administration's failure to enforce COVID-19 protocols at a Scranton-area meat processing plant underscored the importance of court intervention to ensure worker safety at the facility.
The workers told U.S. District Judge Malachy Mannion that OSHA's decision not to cite Maid-Rite Speciality Foods LLC for alleged violations of coronavirus-related safety protocols meant they should be allowed to move forward with a lawsuit aimed at forcing the agency to compel the plant into compliance.
"The agency is unwilling to require Maid-Rite to make basic and simple changes to its production practices," the workers said. "This court's intervention to require OSHA to protect these workers from the risk of COVID-19 remains essential."
The workers, along with the nonprofit Justice at Work, filed suit in mid-July claiming that at least half the plant's workforce had tested positive for COVID-19 as a result of lax social distancing on the production line, infrequent hand-washing breaks and a shortage of personal protective equipment.
Despite having made formal complaints to OSHA about the plant's purportedly lax practices, the workers said that no substantial action had been taken by the agency to try to enforce safety standards at the facility.
OSHA has countered in court filings that an inspector visited the Maid-Rite plant at the beginning of July and did not find that there was any imminent danger to workers, and pledged to continue investigating the company.
Earlier this month, however, the agency said in a letter to Judge Mannion that it had finished investigating Maid-Rite and that the company would not face a citation.
In findings reported along with the letter, OSHA said that while there had been a shortage of face masks initially, the plant now provides them to workers on a biweekly basis.
As for allegations that the workers were crowded together on the plant's production line, the letter said that there were "face coverings and shields" that served to mitigate the potential spread of the virus, adding that the company had installed partitions in the break room.
At the same time, however, the agency told Maid-Rite that despite its decision not to issue a citation, there was room for improvement at the plant, including installation of physical barriers in the production area and greater enforcement of social distancing guidelines.
In their own letter to the court on Tuesday, the workers said that OSHA's admitted conclusion that Maid-Rite could improve safety conditions was clear evidence that the agency needed to do more.
"OSHA's [letter] reaffirms that Maid-Rite ignores physical distancing requirements, but that OSHA is unwilling to take action to protect Maid-Rite's workers from the imminent danger that conduct creates," the workers said.
Given OSHA's reluctance to do so, the workers said it was incumbent on the court to step in and require that changes be made.
"OSHA's conduct in this case reflects that the agency is willing to ignore that guidance and the science … because the agency is unwilling to require Maid-Rite to make basic and simple changes to its production practices," they said.
A spokesperson for OSHA declined to comment, while an attorney for the workers did not immediately return a message from a reporter.
The workers are represented by David Seligman, Juno Turner and Brienne Power of Towards Justice, David Muraskin and Karla Gilbride of Public Justice PC, Adrienne Spiegel, Lerae Kroon, Nina Menniti and Samuel Datlof of Justice at Work, and Matthew Morgan and Anna Prakash of Nicolas Klaster PLLC.
The DOL defendants are represented by George Michael Thiel and Joseph J. Terz of the U.S. Attorney for the Middle District of Pennsylvania, Michael P. Doyle of the DOL's Office of Regional Solicitor, Oscar L. Hampton, III of the DOL's Office of the Solicitor and Richard T. Buchanan of the DOL.
The case is Jane Doe et al. v. Eugene Scalia, case number 3:20-cv-01260, before the U.S. District Court for the Middle District of Pennsylvania.
--Editing by Steven Edelstone.
For a reprint of this article, please contact reprints@law360.com.
