2nd Circuit judge signals that OSHA should handle Amazon COVID case

Amazon's JFK8 distribution center in Staten Island, New York City
An employee scans packages at Amazon's JFK8 distribution center in Staten Island, New York, U.S. November 25, 2020. REUTERS/Brendan McDermid.
  • Amazon workers trying to revive claims the company put profits over safety
  • A judge said federal regulators should decide

(Reuters) - At least one judge on a U.S. appeals court panel on Wednesday sounded skeptical that Amazon.com Inc warehouse workers should be able to pursue claims that the company failed to protect them from COVID-19 in court rather than before the Occupational Safety and Health Administration.

A group of workers at a Staten Island warehouse, represented by Karla Gilbride of Public Justice, are pushing the 2nd U.S. Circuit Court of Appeals to reverse a judge who said OSHA had primary jurisdiction over claims that Amazon's alleged failure to implement measures such as masks and social distancing placed them and their families at a higher risk of becoming ill.

But Circuit Judge Dennis Jacobs during remote oral arguments on Wednesday suggested that courts are not equipped to decide exactly what steps employers should take to maintain safe workplaces.

"How would (the judge) be able to decide at any given time whether it's a necessary precaution that you use one mask or two masks, or be six feet apart or three feet apart, or you should be treated differently if you're over 60 or over 70?" Jacobs said. "What is his expertise?"

Gilbride said courts could look to guidance issued by OSHA and other agencies "as a standard of care against which Amazon’s conduct can be judged."

"The court doesn't need to wait for OSHA to do something," she said.

"Or the court can reject it: 'I don't agree with OSHA and I don't agree with the governor and so forth,'" Jacobs responded.

The plaintiffs in the lawsuit filed last June said Amazon had made the warehouse, which employs about 5,000 people, a “place of danger” by not making efforts to stop the spread of COVID-19 and boosting productivity at the expense of safety.

They accused Amazon of creating a "public nuisance" in violation of state law, which has become a common claim in COVID-related lawsuits against employers.

But U.S. District Judge Brian Cogan in Brooklyn said in November that the claims "go to the heart of OSHA's expertise and discretion" and the agency was better situated to decide exactly what measures Amazon should be taking.

Jason Schwartz of Gibson, Dunn & Crutcher, who represents Amazon, told the 2nd Circuit panel on Wednesday that Cogan was wise to defer to OSHA, particularly because guidance on maintaining safe workplaces during the pandemic continues to evolve.

"It's hard to imagine a case that is less suited for judicial resolution," Schwartz said.

Gilbride, meanwhile, also told the court that Cogan was wrong to find that the plaintiffs failed to allege "special harm" caused to them by Amazon that was not experienced by the general public during the pandemic.

Some Amazon workers took unpaid time off to avoid becoming sick, she said. And one of the plaintiffs contracted COVID because of Amazon's unsafe practices and then spread it to a family member who died, Gilbride said.

The panel included Circuit Judges Denny Chin and William Nardini.

The case is Palmer v. Amazon.com Inc, 2nd U.S. Circuit Court of Appeals, No. 20-3989.

For the plaintiffs: Karla Gilbride of Public Justice

For Amazon: Jason Schwartz of Gibson, Dunn & Crutcher

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Dan Wiessner reports on labor and employment and immigration law, including litigation and policy making. Reach him at daniel.wiessner@thomsonreuters.com