Section 662(d) of the Occupational Safety and Health Act (OSH Act) allows employees to file suit against employers seeking compliance with the Occupational Safety and Health Administration’s (OSHA) safety standards in urgent situations. In 2020, employees at a Pennsylvania meat processing facility filed suit against their employer, alleging failure to comply with OSHA’s COVID-19 safety protocols. After the suit was filed, OSHA completed its investigation of the facility, finding no violations. The plaintiffs continued their suit, claiming that OSHA’s decision not to issue citations was arbitrary and capricious.

In Doe v. Scalia, the district court dismissed the suit, finding that once the OSHA investigation ends without finding any violations, employees can no longer independently pursue claims for injunctive relief. The plaintiffs appealed this decision to the Third Circuit Court of Appeals. Among other grounds, the employees said that the automatic dismissal makes it impossible for workers to challenge arbitrary investigations and decisions by OSHA.

The Third Circuit disagreed, affirming dismissal of the lawsuit. The court concluded that the OSH Act vests the agency with authority to investigate and make determinations as to the existence of workplace hazards. Once OSHA finishes its investigation and finds no violations, the employees’ right to seek injunctive relief against the employer terminates. Presumably workers could pursue a separate claim against OSHA based on its failure to enforce safety standards, but the direct claim against the employer terminates at the end of an OSHA investigation that does not result in citations.