Employer Can’t Be Sued Over COVID-19 Protections (or Lack Thereof)

Employment Law

Can an employer be liable for an obligation to provide a certain level of protection against COVID-19 for its workers?

Not according to a New York federal court decision in a case brought against Amazon by employees asserting that the company breached its duty to provide a safe workplace and that its policies constituted a public nuisance.

Four employees at Amazon’s JFK8 fulfillment center on Staten Island filed suit against the company, asserting claims for public nuisance, breach of the duty to provide a safe workplace, failure to timely pay COVID-19 leave and an injunction against future failure to timely pay COVID-19 leave.

JFK8 operates 24 hours per day, seven days a week and is larger than 14 football fields, employing thousands of workers. The plaintiffs argued that Amazon’s operations at JFK8 fail to comply with applicable workplace guidance.

Specifically, Amazon’s productivity requirements prevent employees from engaging in basic hygiene, sanitization and social distancing, according to the complaint; contact tracing for COVID-19 infections is not conducted adequately, leave policies are inadequate to encourage workers to take time away from work if they are experiencing symptoms of COVID-19 or have been exposed to it, and with only two breakrooms featuring air conditioning, workers cluster in those areas on hot days, impeding social distancing.

Amazon moved to dismiss the complaint.

U.S. District Judge Brian M. Cogan granted the motion, first ruling that the primary jurisdiction doctrine prevented the public nuisance claims.

The Occupational Safety and Health Administration (OSHA) is the federal agency within the Department of Labor charged with regulating health and safety in the workplace. While OSHA has not issued a standard specific to COVID-19, it has continued to use its enforcement mechanisms during the pandemic, the court said.

“Plaintiffs seek relief that involves detailed aspects of how Amazon regulates its workplace, from how Amazon manages employee productivity, to the time and tools provided to sanitize workstations, to the availability of air-conditioned break rooms, among other injunctive mandates,” Judge Cogan wrote. “Plaintiffs’ claims thus turn on factual issues requiring both technical and policy expertise.”

These claims “go to the heart of OSHA’s expertise and discretion,” he explained. “[C]ourts are not expert in public health or workplace safety matters, and lack the training, expertise, and resources to oversee compliance with evolving industry guidance.”

The risk of inconsistent rulings further weighed in favor of applying the doctrine of primary jurisdiction, the court added.

“This case concerns state and federal guidance addressing workplace safety during a pandemic for which there is no immediate end in sight,” Judge Cogan wrote. “Regulating in the age of COVID-19 is a dynamic and fact-intensive matter fraught with medical and scientific uncertainty. There is room for significant disagreement as to the necessity or wisdom of any particular workplace policy or practice. Courts are particularly ill-suited to address this evolving situation and the risk of inconsistent rulings is high.”

Even if the court did not defer to OSHA’s primary jurisdiction, it would have dismissed the public nuisance and state law claims.

The alleged injuries of increased risk of contracting COVID-19 and fear of the same is an injury “common to the New York community at large,” the court said, and unlike a typical public nuisance (such as a pigsty, malarial pond or noxious landfill), JFK8 “is not the source of COVID-19, emitting the virus from a single source into an otherwise healthy world.”

As for the state law claims, the allegations of past harm are pre-empted by New York’s workers’ compensation law, while future harm remained an incognizable injury, Judge Cogan said.

To read the memorandum decision and order in Palmer v. Amazon.com, click here.

Why it matters: The decision provides some peace of mind for employers concerned about facing similar claims from employees about the level of protection being provided against COVID-19.



pursuant to New York DR 2-101(f)

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