If OSHA Doesn’t Respond to Workers’ Safety Complaints, Can I Sue OSHA?

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If a worker files one or more complaints with the Occupational Safety and Health Administration (OSHA), without a response, he or she may wonder, “Can I sue OSHA”? In most cases, if OSHA denies or fails to address an OSHA violation, the worker does not have any recourse. He or she may not be able to sue OSHA or his or her employer. But if OSHA's denial or failure to adequately address the workers' complaints is “arbitrary and capricious,” then the worker may be able to sue OSHA directly in federal court. In 2020, workers took advantage of this provision and attempted to sue OSHA for failing to respond to workplace safety complaints. Some of the more recent lawsuits have pertained to failure to provide protection from the COVID-19 pandemic.

Submitting a Complaint to OSHA

One recent lawsuit against OSHA comes from three meatpacking factory workers at Maid-Rite Specialty Foods in Pennsylvania. The workers and their attorneys allege that Maid-Rite failed to provide sufficient personal protective equipment along with social distancing guidelines. The lawsuit, filed in July, also accused Maid-Rite of other safety violations. The case began in May when OSHA received a complaint regarding conditions at Maid-Rite. The complaint claimed that Maid-Rite failed to provide notification of COVID-19 infections and even offered bonuses and other incentives to workers who didn't miss any workdays. It also claimed that workers worked within arm's reach of each other and that the workplace had only supplied them with masks a total of three times. The day after the organization received the complaint, OSHA's area director requested that Maid-Rite conduct an internal investigation of the claims. However, the area director made it clear in the request that OSHA didn't intend to conduct its own investigation based on the complaints.

Suing OSHA for a Lack of Response

As of August, OSHA stated that the complaint was still the subject of an ongoing investigation and that the complaint remained open, but the lack of adequate response led to a lawsuit against the organization. In the lawsuit, attorneys for the plaintiffs make the argument that the law responsible for creating OSHA in 1970 enables workers to ensure OSHA takes action through the use of litigation against the secretary of the Labor Department. The attorneys for the three Maid-Rite workers ultimately hope that the case leads OSHA to take action and ensure that workers at Maid-Rite receive the protection they deserve.

Seeking Compliance from OSHA and Others

Since the spread of COVID-19 and the implementation of public health guidelines, OSHA and other organizations and companies have come under fire for a lack of responses and compliance. Another lawsuit by AFL-CIO that was dismissed in June attempted to get OSHA to enforce stricter safety regulations to protect workers from COVID-19. Walmart, Amazon, and other companies have also faced legal repercussions for failure to provide adequate protection. These and other cases may help lead to better compliance from OSHA and other organizations.

Can I Sue OSHA?

OSHA enforces and regulates worker safety by law. Workers or other parties can file a complaint with OSHA to disclose hazardous employment conditions or violations with OSHA regulations. Ordinarily, someone files the complaint with OSHA, OSHA conducts an evaluation and investigates the complaint, then OSHA issues a decision. The decision could be, for example, a finding that there is a violation, and they would take the appropriate steps to address the violation. If OSHA instead chose not to address or investigate the violation, the endangered worker (or his or her representative) may file a lawsuit against OSHA in federal court. To have a basis for doing so, however, he or she must typically show that OSHA's decision was arbitrary or extremely unreasonable.

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For the past 15 years Mr. Pothitakis has focused his practice on Workers Compensation and Personal Injury Cases. The firm has two locations, one being in Burlington, Iowa and the other in Keokuk, Iowa. Mr. Pothitakis works with many area unions and employee organizations to provide advice, assistance, and guidance as it relates to employment issues. Mr. Pothitakis provides free consultations to those with legal questions in the firm's areas of practice. In this initial meeting or conference potential clients are provided advice on their need for assistance and how they need to proceed.