The Occupational Safety and Health Act (OSHA) protects employers from workplace hazards. The scope of protection offered by OSHA is broad and ensures not only a safe work environment free from physical hazards, but also requires employers to provide necessary safety equipment and provides specific guidelines that employers must follow. Since COVID-19, workers have been rightfully concerned with safety, particularly when employers do not provide adequate personal protection equipment (PPE) or modify the workplace to allow for social distancing as recommended by health agencies including the Centers for Disease Control (CDC).

Unfortunately, there is growing criticism that OSHA has been slow to respond and has failed to protect the thousands of workers that have filed safety concerns with the agency. As a result, workers have been forced to work in unsafe conditions as they wait for OSHA to respond to safety complaints which has always been slow, but has come to a virtual standstill due to the increased number of complaints filed in light of  increased safety concerns due to COVID-19. Also, since OSHA does not allow workers the right to sue employers directly for alleged safety violations, attorneys have found novel ways to advocate for employees who are concerned with their safety at work and must be protected immediately.

Some workers have filed novel lawsuits against employers under a public nuisance theory. Currently, lawsuits are pending against McDonald’s and Amazon alleging that the companies’ failure to adopt COVID-19 related safety measures has created a risk of public harm because of the increased risk of spreading the virus if workers contract the disease due to workplace safety violations. Therefore, workers are seeking the court’s assistance to order compliance with safety guidelines to protect the health and safety of employees as well as the public. Already, courts have ordered McDonald’s to increase safety measures, and Amazon no longer penalizes employees for taking time to wash hands as recommended by the CDC.

Another way that workers are able to bring their allegations to court is a little-known provision of OSHA that allows workers to seek a court order to compel OSHA to act when the Department of Labor (which enforces OSHA) “arbitrarily or capriciously fails to seek relief.” In other words, workers can ask a court to order the agency to take action against an employer to ensure the workplace is safe in the midst of the pandemic.

In a lawsuit filed in July by meatpackers at a Maid-Rite Specialty Foods factory in Pennsylvania, the workers are asking the court to order the Department of Labor to issue an OSHA citation because the workplace does not allow for appropriate social distancing and masks have not been provided. In this case, OSHA refused to investigate, and instead concluded that there was no “imminent danger” to workers despite the fact that the meatpacking industry has been the source of several COVID-19 related outbreaks across the country.

Specifically, workers allege several safety concerns including Maid-Rite has not modified the production line to allow for social distancing; fails to provide cloth mask; does not allow for enough time for hand washing; and has policies that encourage sick employees to work. By suing the Department of Labor, the employees are challenging the agency’s decision not to investigate and asking the court to compel the agency to protect the health and safety of employees by issuing an OSHA citation for the on-going safety violations. The case is currently pending in the U.S. District Court for the Middle District of Pennsylvania and will certainly have a significant impact on COVID-19 related litigation across the country if Judge Malachy Mannion agrees with the workers and compels the Department of Labor to issue OSHA citations for safety violations.

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Srourian Law Firm, with locations in Los Angeles, Westwood, Woodland Hills, and Orange County is experienced in all aspects of employment law including health and safety violations in the workplace, and have aggressively represented employees in Los Angeles, Hollywood, Santa Monica, Orange, Irvine, Anaheim, Santa Ana, Newport Beach, Costa Mesa, Fullerton, Tustin, Mission Viejo, San Clemente, Garden Grove, Laguna Niguel, Brea, Fountain Valley, Aliso Viejo, Yorba Linda, Westminster, Laguna Hills, Cypress, and La Habra.

If you or someone you know suffered employment violations due to health and safety violations, you may have certain employee rights under state and federal law, and may be entitled to compensation as a part of a class action lawsuit. Please contact us to speak with one of our lawyers for a free consultation.