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Law360 (December 3, 2020, 9:23 PM EST ) The U.S. Department of Labor's workplace safety arm will not cite a meat processing company investigated for alleged COVID-19 violations, despite a lawsuit by workers urging a Pennsylvania federal court to force the agency to make the company better protect against the disease.
In a letter to the court on Wednesday, the DOL's Office of the Regional Solicitor said the Occupational Safety and Health Administration had finished investigating Maid-Rite Specialty Foods LLC, and that the company would not face a citation.
OSHA would "not be instituting an enforcement proceeding" against Maid-Rite as a result of the probe, the letter said, adding that it had told the company "to use best practices with regard to social distancing on its meat processing lines."
Three Maid-Rite employees and Justice at Work, a nonprofit, sued the DOL in July after at least half the company's workers caught COVID-19, according to the complaint. The workers asked the agency to immediately inspect the plant and make it fix its alleged lack of compliance.
The workers blamed not only Maid-Rite, which produces prepackaged frozen meat products to sell to schools, military bases and nursing homes, but also the government, for failing to hold the company accountable.
"Instead of recognizing the clear imminent danger posed by COVID-19 and Maid-Rite's practices that exacerbate its spread, OSHA appears poised to ignore the facts in the imminent danger complaint and treat it as implicating only garden-variety workplace hazards that can be addressed by OSHA over the course of months," the lawsuit said.
But the DOL also submitted to the court Wednesday a letter it sent a person who filed a June complaint about Maid-Rite, outlining the inspection results. The complaint had alleged that the company had provided employees with only two face masks and forced them to work side by side on production lines without social distancing, among other accusations, according to the results letter.
The government said in the results letter that it found that while face masks had been short initially, the plant now provided them on a biweekly basis. As for the production lines allegation, the letter said that although the employees were within six feet of each other, "they do wear face coverings and shields," and that the company had installed partitions in the break room.
In a "hazard alert" letter that the DOL sent Maid-Rite and also submitted to the court Wednesday, the agency said the plant had already been sanitizing surfaces, screening employees for COVID-19 symptoms and providing handwashing and hand sanitizing stations as well as face masks and face shields.
The DOL told the plant in the letter that it would not issue a citation, but "improvements could be made to bolster your approach to protecting employees from SARS-CoV-2," referring to the disease by its official name.
Earlier in the case, the DOL accused the employees in a July motion to dismiss of trying to "hijack" its inspection process and saying "no imminent danger exists at the plant."
OSHA has primarily issued citations to medical facilities and nursing homes for COVID-19 violations, along with a handful of food processing plants, which have been hotbeds of the disease. Some food facilities have fought back against federal or state closures over alleged noncompliance.
Lerae Kroon of Justice at Work, who represents the Maid-Rite employees, said OSHA was not doing enough to protect the workers.
"As COVID-19 case numbers in the area rise, Maid-Rite workers have continued to work shoulder to shoulder without the opportunity to protect themselves by distancing themselves from other workers and other adequate safety precautions," Kroon told Law360 by email Thursday. "That OSHA made Maid-Rite's mitigation of these risks optional is dangerous and falls far short of ensuring worker safety."
A DOL Pennsylvania regional spokesperson declined to comment.
Spokespeople for OSHA and Maid-Rite were not immediately available to comment.
The Maid-Rite employees and Justice at Work are represented by Lerae Kroon, Nina A. Menniti and Samuel H. Datlof of Justice at Work, Adrienne Spiegel and Karla Gilbride of Public Justice, PC and David H. Seligman of Towards Justice.
Justice at Work, formerly known as Friends of Farmworkers, is also represented by Brianne Michelle Power and Juno E. Turner of Towards Justice, Anna P. Prakash and Matthew Morgan of Nichols Kaster PLLP and David Samuel Muraskin of Public Justice.
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 Does I, II, III et al. v. Scalia et al., case number 3:20-cv-01260, in U.S. District Court for the Middle District of Pennsylvania.
--Additional reporting by Craig Clough and Matt Fair. Editing by Haylee Pearl.
For a reprint of this article, please contact reprints@law360.com.
