By Marjorie Johnson, J.D.
Even if the court had not deferred the safety-related claims to OSHA, the public-nuisance claim still failed since the injury alleged by the Amazon workers and those who they lived with—the increased risk of contracting COVID-19—was common to the NYC community at large.
A group of Amazon warehouse workers and people who lived with them failed to advance novel claims raised in a lawsuit challenging the company’s compliance with state and federal public health guidance and law during the COVID-19 pandemic. Applying the primary-jurisdiction doctrine, a federal district court in New York dismissed without prejudice their common law claim alleging a public nuisance and their state statutory claim alleging the company breached its duty to provide a safe workplace, ruling that those claims were best brought before OSHA. The court further concluded that even if it were to consider the claims, they would nevertheless fail to advance for other reasons, and dismissed with prejudice their claims asserting that Amazon violated the state’s wage-payment law by failing to timely pay employees for their COVID-19 leave (Palmer v. Amazon.com, Inc., November 1, 2020, Cogan, B.).
Substandard COVID-19 practices. This action was brought by employees who worked at an Amazon fulfillment on Staten Island and people who lived with them, some of whom were at a higher risk of complications from COVID-19. Their claims of public nuisance and breach of the duty to protect the health and safety of employees under New York Labor Law (NYLL) asserted that the company failed to comply with applicable federal and state workplace guidance relating to COVID-19. For example, they claimed that the company enforced productivity requirements that prevented employees from engaging in basic hygiene, sanitization, and social distancing, for fear of being penalized for aggregating too much time off a task.
They also claimed that only two breakrooms were air conditioned, causing workers to cluster there on hot days, further impeding social distancing. Additionally, they claimed that the company failed to conduct adequate contact tracing for COVID-19 infections among its employees by, for instance, failing to interview infected workers to discuss their contacts and discouraging those workers from informing others that they may be at risk.
Untimely pay for COVID-19 leave. The plaintiffs also challenged Amazon’s application of New York’s COVID-19 leave law, claiming that the company failed to clearly communicate the availability of leave and to promptly approve it. They also claimed that it failed to promptly pay workers for the full amount of leave to which they were entitled, in violation of the state’s wage payment law. In addition, they asserted that the company’s leave policies were inadequate to encourage workers to take time off if they experienced COVID-19 symptoms or were exposed.
Injunctive relief. The plaintiffs primarily sought injunctive relief regarding Amazon’s operation of the facility, its communication to its employees, and its sick leave payments. Two employees also sought damages for the company’s failure to timely pay their COVID-19 sick leave pay.
OSHA better suited to address. The district court dismissed, without prejudice, the plaintiffs’ public nuisance and NYLL claims pursuant to the primary-jurisdiction doctrine, rejecting their contention that the claims did not implicate OSHA’s expertise and discretion. The central issue of their lawsuit was whether workplace policies at the facility adequately protected the safety of Amazon workers during the pandemic. While there was no doubt that shutting the facility down completely while still providing employees their pay and benefits would be the best protection against contagion, “someone has to strike a balance between maintaining some level of operations in conjunction with some level of protective measures” and that task was best left to OSHA and not the courts.
Technical and policy expertise. The plaintiffs sought relief that involved detailed aspects of how Amazon regulated its workplace, including how it managed productivity, the time and tools provided to sanitize workstations, and the availability of air-conditioned break rooms. Their claims thus turned on factual issues requiring “both technical and policy expertise” as they challenged how the practices and policies impacted the transmission of “a poorly understood disease” and whether they created an unsafe workplace or otherwise violated state and federal guidance and standards. Courts are not expert in public health or workplace safety matters, and their claims and proposed injunctive relief “go to the heart of OSHA’s expertise and discretion.”
Danger of court-imposed policies. The risk of inconsistent rulings further weighed in favor of deferring to OSHA as “[r]egulating in the age of COVID-19 is a dynamic and fact-intensive matter fraught with medical and scientific uncertainty,” with “room for significant disagreement as to the necessity or wisdom of any particular workplace policy or practice.” Court-imposed policies “could subject the industry to vastly different, costly regulatory schemes in a time of economic crisis” while an OSHA determination “would be more flexible and could ensure uniformity.”
Moreover, the advantages of applying the doctrine outweighed the potential costs of delay in the administrative proceedings. The plaintiffs’ challenges to workplace policies required the expertise of the agency tasked with regulating workplace health and safety, and while dismissal would delay the implementation of their proposed relief, at least part of the reason for that delay was the plaintiffs’ failure not to pursue emergency relief or to simultaneously apply to OSHA.
No “public” nuisance. Even if the court didn’t defer to OSHA’s primary jurisdiction, it would dismiss the public nuisance claims since the alleged injury did not go beyond that suffered by “the community at large” and was “so general and widespread as to affect a whole community.” The plaintiffs’ alleged injury was the increased risk of contracting COVID-19 because they worked in conditions—or lived with someone who did—that increased the risk of spread of COVID-19. This injury was common to the New York City community at large, and unlike “the noxious landfill, a malarial pond, or a pigsty,” as the fulfillment center was not the single source of COVID-19. Rather, plaintiffs and the public risked exposure “nearly anywhere in this country and the world.”
No cognizable statutory negligence claim. While the court rejected Amazon’s contention that plaintiffs’ NYLL claim was preempted by OSHA, it held that the statutory claim for past harm was preempted by the state’s workers’ compensation law. Moreover, the plaintiffs failed to state a claim insofar asthey alleged the threat of contracting COVID-19 at the Amazon facility since a threat of a future harm is not a cognizable injury sufficient to impose liability in a tort context.
COVD-19 leave not statutory “wages.” The court also dismissed, but this time with prejudice, the plaintiffs’ claim that Amazon’s delayed payment for COVID-19 leave to two employees violated the state’s wage-payment law and their bid for an injunction against future untimely payments. The court held that COVID-19 leave does not constitute “wages” under the state statute, which sets out the frequency of the payment of “wages” for certain categories of workers, but instead is “a benefit or wage supplement” like sick leave and vacation pay.
In urging otherwise, the plaintiffs relied on the state labor department’s statement in its “Frequently Asked Questions” page for COVID-19 leave that the “paid sick leave payments are subject to the frequency of pay requirements of [the wage-payment law.” However, the agency’s stance in this regard conflicted with its prior guidance that paid sick time off is a benefit provided at the discretion of the employer and for which no “prescribed method” of payment exists. It also conflicted with the plain language of the wage law, which expressly excepted benefits and wage supplements from the requirement to timely pay wages—and COVID-19 leave is “simply a state-mandated sick leave benefit.”
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