In early November 2020, a judge for the Eastern District of New York dismissed a COVID-19 lawsuit brought by workers at a Staten Island Amazon facility against the e-commerce behemoth. The lawsuit, initially filed in June, alleges violations of New York state laws, including public nuisance protections and failure to comply with pandemic public health guidance. Judge Brian Cogan ruled that the federal Occupational Safety & Health Agency (OSHA) is the proper venue for adjudicating the claims related to Amazon’s COVID-19 measures and policies at the Staten Island warehouse known as the JFK8 facility.
Allegations Against Amazon
In the original complaint, three JFK8 workers, along with three family members, allege that Amazon’s failure to comply with laws and public health mandates caused injury and death to workers and their families. The complaint asserts that JFK8 workers continue to contract the virus under Amazon’s “façade of compliance” with appropriate pandemic safety protocols.
No Time for Hygiene
The plaintiffs describe conditions where workers don’t have time to properly sanitize their workstations or frequently wash their hands to prevent the spread of COVID-19. The workers point to Amazon’s strict work-pace requirements called Time Off Task, or TOT, as the culprit. Amazon monitors workers’ every movement, giving feedback, and taking disciplinary action for too much time spent “off task.” The plaintiffs claim that TOT prevented them from taking protective measures without fear of reprisal. They want more time for off-task sanitizing and personal prevention like handwashing in the bathroom.
It is noteworthy that in July, after the June lawsuit filing, Amazon announced that it stopped giving productivity and rate feedback in its facilities. The company also stopped disciplinary actions related to Time Off Tasks that workers take to use the bathroom, sanitize their workstations, or socially distance.
Inadequate Contact Tracing
In the complaint, the workers also allege that Amazon’s contact tracing methods are not consistent with CDC and/or New York state guidance. Instead of interviewing infected workers to identify the colleagues they came into contact with, Amazon uses surveillance cameras to identify “workers who come into close contact with an infected worker during the final shift that the worker was in the facility before leaving due to infection.” The plaintiffs also report that Amazon discourages COVID-19 positive workers from telling coworkers about their positive test.
Two plaintiffs allege that Amazon failed to pay them timely quarantine wages under New York labor law. They are seeking back pay for quarantine leave.
Danger to Families
One plaintiff claims she is at greater risk of contracting the coronavirus due to her boyfriend working at JFK8. She alleges that she could have been the COVID-19 carrier that infected her father, who died of the virus. Another plaintiff says she contracted COVID-19 from working at the JFK8 facility in March. She alleges the company encouraged everyone to continue working but did not introduce appropriate safety measures. Her family contracted the virus and her cousin, whom she lived with, died in their bathroom after suffering from COVID-19 symptoms.
Referral to OSHA
Judge Cogan disagreed with the plaintiffs that their workplace safety claims can be resolved by the court. Basing his decision on the doctrine of primary jurisdiction, Cogan dismissed the public nuisance and NYLL § 200 claims without prejudice. The claims under NYLL § 191 were dismissed with prejudice. This judge maintains that “courts are not experts in public health or workplace safety matters, and lack the training, expertise, and resources to oversee compliance with evolving industry guidance. Plaintiffs’ claims and proposed injunctive relief go to the heart of OSHA’s expertise and discretion.”
Not a Public Nuisance
Judge Cogan asserts that under New York law, a “public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large.” The judge ruled that the plaintiffs’ concerns and risks are different in degree but not in kind from the injury suffered by the larger New York metropolitan community during the pandemic. Cogan dismissed this public nuisance claim because the alleged injuries of an increased risk of contracting COVID-19 and fear of the same “because they work in conditions, or live with someone who does, is common to the New York City community at large.”
Not Under Labor Law’s Jurisdiction
The plaintiffs claim that Amazon breached its duty under NYLL § 200 to maintain a safe workplace in its failure to adopt and adhere to New York’s workplace guidance and COVID-19 leave law. This, allegedly, caused plaintiffs “emotional harm and in some cases pecuniary harm and physical harm associated with the COVID-19 infection.” Judge Cogan sees this claim as asking the “Court to create and enforce a scheme of workplace safety standards.” In Cogan’s view, this type of regulation sits within OSHA’s expertise. Therefore, he ruled that the agency should have the first opportunity to “evaluate the wisdom and necessity of such policies” in the unprecedented context of the COVID-19 pandemic.
The plaintiffs argued that their claims for past and future harm are not preempted by New York Workers’ Compensation Law (NYWCL) because they seek injunctive relief rather than monetary damages. Judge Cogan, however, ruled that NYWCL bars the plaintiffs’ § 200 claim because it is for past injury. Judge Cogan also found that the plaintiffs’ claim for the threat of future harm under § 200 also fails, stating that “because the threat of future harm does not provide a valid basis for a tort claim,” plaintiffs cannot maintain their § 200 claim based on the threat of contracting COVID-19 at JFK8.”
Wages are Not Owed
Finally, plaintiffs also bring a claim for an injunction against future untimely payments. Judge Cogan agreed with Amazon that COVID-19 leave does not constitute “wages” under New York Labor Law § 191 language and dismissed this claim. Cogan determined that paid sick leave doesn’t qualify for earnings or wages under this law but is instead a benefit or wage supplement like vacation and holiday pay.
Will Courts Continue to Defer?
Given the unique and unprecedented aspects of the COVID-19 pandemic on workplaces and workers, courts are likely to continue to decline to litigate these issues. Instead, they’ll defer to OSHA, or other appropriate state or federal agencies to weigh in on the allegations first.