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Amazon Workers Ask Second Circuit to Revive Novel Covid-19 Case

May 19, 2021, 6:11 PM

Amazon workers told a federal appeals court Wednesday that the online retailer should be forced to impose warehouse safety standards to prevent the spread of Covid-19, pursuing a novel ruling prompted by the pandemic.

Seven warehouse workers in New York asked the U.S. Court of Appeals for the Second Circuit panel to overturn the dismissal of their lawsuit accusing Amazon.com Inc. of creating a “public nuisance” by failing to adequately protect them as the coronavirus spread.

The case raises questions that would be an issue of first impression for the court to consider, said Karla Gilbride, an attorney with Public Justice, who argued for the workers.

Gilbride asked the Second Circuit to clarify that the Occupational Safety and Health Administration standards don’t preempt the enforcement of state law when employers aren’t complying with those measures, which were put in place to prevent the spread of Covid-19. She also argued the company failed to protect workers by declining to give them paid leave so that they wouldn’t go to work with the virus.

In November, U.S. District Judge Brian Cogan in Brooklyn ruled on Nov. 2 that OSHA was better situated “to strike a balance between maintaining some level of operations in conjunction with some level of protective measures.”

Gilbride told the judges that because of the unsafe conditions at Amazon, households of the workers who sued were exposed to the virus and some of those people later died. “It was due to Amazon’s conduct that couldn’t be avoided,” she said.

Amazon attorney Jason Schwartz, a partner with Gibson, Dunn & Crutcher, said that the workers are asking the court to “fashion from whole cloth a Covid-19 safety regime that is appropriate and adequate.” He said that shouldn’t be for the courts to decide and regulatory bodies, OSHA in this case, are in place to make those determinations.

“They still haven’t knocked on OSHA’s door,” Schwartz said.

Workers attorneys have had only mixed success utilizing the “public nuisance” doctrine to bring Covid-19 lawsuits. These include cases against McDonald’s restaurants, Smithfield Foods, and Amazon. Employees had early success in lawsuits against McDonald’s claiming that failing to protect them from the spread of the virus created a public nuisance, winning some relief in Illinois and California.

In a friend of the court brief, the U.S. Chamber of Commerce urged the court to uphold the lower court’s decision. Subjecting companies “to private lawsuits—through which safety standards are determined piecemeal by plaintiffs and the courts rather than by administrative agencies—will result in inconsistent rulings and impose unnecessary costs on businesses, thereby preventing greater investment and reducing the quality of goods and services,” chamber attorneys said.

The National Employment Law Project, however, argued in its own amicus filing that the New York workers compensation law shouldn’t prevent injunctive relief, and distorted the intention of the law. The workers rights group said that OSHA’s guidance during Covid-19 was “limited and nonexistent” during the pandemic.

“OSHA’s decision left workers at workplaces like Amazon unable to rely on the agency to protect them,” the attorneys wrote. “The district court erred in declining jurisdiction when one of America’s biggest corporations imperils the health and safety of Black, Latinx, and other low-paid workers of color, particularly in a context where OSHA’s priorities have left those workers on their own.”

Hearing the appellate arguments was a three-judge panel comprised of U.S. Circuit judges Dennis Jacobs, Denny Chin, and William Nardini.

In court, Gilbride also argued that workers compensation law doesn’t prevent the workers from bringing the public nuisance claim and it doesn’t take injunctive relief off the table. The workers’ complaint, filed in June, accused Amazon of failing to follow minimum public health standards to prevent transmission of the virus, among other allegations.

Amazon’s Schwartz countered that the workers compensation bar is plain and bars the company from being liable for for workplace issues.

“The quid never has to have the quo,” he said “They give up other liability and get cash. They can go to administrative agencies.”

The workers are represented by Towards Justice, Public Justice, Make the Road New York and the Terrell Marshall Law Group. Amazon is represented by Gibson, Dunn & Crutcher.

The case is Palmer v. Amazon.com, 2d Cir., No. 20-03989, oral argument 5/19/21.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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