The Occupational Safety and Health Administration is failing to do its job properly, according to a new lawsuit filed Thursday by three meatpacking workers, who say the agency’s inaction has left them in danger.

The lawsuit accuses OSHA of leaving the workers in imminent danger due to what they say are hazardous working conditions at the factory they work at, run by Maid-Rite Specialty Foods in Pennsylvania, in the midst of the coronavirus pandemic.

Maid-Rite Specialty Foods did not respond to multiple emails and telephone requests for comment.

Representatives for OSHA and the Department of Labor did not respond to a request for comment. But OSHA officials have said that they believe its existing regulations, along with the updated guidelines put out during the pandemic, are sufficient to keep workers safe.

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Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health testified before Congress in May. Chip Somodevilla/Pool via Associated Press

The lawsuit is one of a series of legal challenges seeking to compel OSHA, as well as private businesses, to act more forcefully to uphold protections around worker safety.

The lawsuit, which was filed in federal district court in Pennsylvania, is based off a complaint that lawyers working on behalf of the workers filed with OSHA in May.

The complaint accused Maid-Rite of failing to provide adequate protective gear or social distancing on the processing lines.

The Maid-Rite workers also said in the complaint that the company did not handle ill employees in a safe manner, failing to separate sick employees and to inform all of those who worked closely with them when there were infections. The complaint also said the company gave workers incentives to work while sick, by offering bonuses to those who didn’t miss days.

The lawsuit claims that OSHA failed to adequately respond to that complaint, as it is required to do.

The lawyers who filed the lawsuit, David Muraskin, at the nonprofit Public Justice, and David Seligman, the executive director of the worker legal group Towards Justice, say that this case will serve as another test to whether OSHA can be held accountable in court.

“This is because of the federal government’s failure to step in here,” Seligman said, of the lawsuit. “We hope that the lawsuit spurs OSHA into action for these workers. Every day they go to work they’re in imminent danger. If the virus were to enter the facility, there’s every reason to believe that it could cause death.”

Back in May, Loren Sweatt, the principal deputy assistant secretary of labor for OSHA, testified before Congress that the agency received 4,268 coronavirus-related complaints as of May 21, of which nearly 3,000 have already been closed. She said that worker safety has been the agency’s “top priority” during the pandemic and that it will increase in-person inspections and enforcement of workplace coronavirus case reporting as states reopen.

Yet, despite the complaints, the federal agency had only issued one citation as of the end of May. And OSHA has declined so far to issue emergency regulation that would force national safety standards for workplaces dealing with the virus, the kind that companies must adhere to under threat of citations and penalties.

While OSHA hasn’t responded to a request for comment on this lawsuit, the agency did respond to the workers complaint from May, according to supporting documents included in the lawsuit.

A day after OSHA received the original complaint on behalf of Maid-Rite Specialty Foods workers, Mark Stelmack, an area director for OSHA in its Wilkes-Barre office, wrote to Maid-Rite outlining the allegations it put forth, according to the lawsuit.

Stelmack requested that Maid-Rite Specialty Foods immediately investigate the concerns and “make any necessary corrections or modifications,” but noted that “OSHA does not intend to conduct an on-site inspection in response to the subject complaint at this time,” the lawsuit stated.

The company would be required to document any findings, Stelmack said, and he also asked for a long list of questions to be answered – about whether there were infections at the plant, and what kind of safety protocols were in place for workers, according to the lawsuit.

Stelmack wrote that OSHA was aware that global demand for safety gear had limited the availability of some protective equipment, noting that “if this situation has prevented you from furnishing protective equipment to your employees, you should provide that documentation.”

An OSHA official told lawyers for the workers that Maid-Rite had sent an extensive response to the inquiry, but the agency declined to share the response with the lawyers, according to documents filed in the lawsuit.

The workers’ lawyers said in the lawsuit that coronavirus safety hazards continued to persist at the company’s plant through June, and they documented the concern in three follow-up letters to OSHA.

OSHA informed the lawyers by phone that it was in the process of conducting an inspection of the facility, the lawyers said, but the lawyers wrote that they were unable to get more information about it, according to the lawsuit. The review is still open, according to OSHA’s website.

The lawsuit uses what the lawyers on the case say is a novel legal argument, by citing part of the 1970 law that created the agency, the Occupational Safety and Health Act, that the lawyers say allows workers to bring legal actions against the Secretary of the Department of Labor to force OSHA into action.

The provision is rare among the charters for public agencies, whose regulatory decisions and purview typically offer limited avenues for private legal cases, the lawyers said.

“Regardless of the legal outcome, we hope that workers see that people are willing to stand with them and fight with them, and they can use that as mechanism to organize and know people have their back,” Muraskin said.

The three workers are named anonymously in the lawsuit, as Jane Doe I, II and III – a provision necessary to protect them from retaliation, their lawyers argue. A judge will rule whether the plaintiffs can proceed using the pseudonyms.

The court records filed in the case include signed statements from each of the workers, in English and Spanish, that detail what they say was a lack of proper safety protocol at the facility.

“Since the complaint was filed with OSHA, almost nothing has changed at Maid-Rite,” each of the statements say.

OSHA has been harshly criticized by workers, labor advocates and former agency officials for near absent enforcement of safety issues at workplaces during the coronavirus pandemic.

Meatpacking facilities have been one of the country’s sources of large infections, according to a Washington Post analysis from May more than 11,000 infections were tied to three of the country’s biggest meat processors alone: Tyson Foods, Smithfield Foods and JBS.

The AFL-CIO, the nation’s largest labor federation, sued OSHA in May, seeking to force the agency to issue stronger safety regulations for coronavirus, but that lawsuit was dismissed in June. Later that month in a separate case, a judge dismissed a case that had been brought against a meat processor, Smithfield Foods, saying that OSHA, not the courts were the appropriate avenue for oversight.

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