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Amazon Workers Fight to Revive Covid-19 Safety Suit

The appeal follows a federal judge's ruling that safety issues like those here are a matter for regulators, not the courts.

MANHATTAN (CN) — Amazon workers and loved ones who say the e-commerce giant put all their lives at risk during the Covid-19 pandemic pushed the Second Circuit on Tuesday to revive their employment-safety lawsuit. 

Led by whistleblower Derrick Palmer, the group brought the case last year in New York’s Eastern District, saying Amazon kept its focus on profits as an essential business allowed to operate when the novel coronavirus took hold, forcing employees to perform at “dizzying speeds, even if doing so prevents them from socially distancing, washing their hands, and sanitizing their work spaces." Palmer brought the case with six others, including his girlfriend, who said her close proximity to Amazon safety issues kept her from spending time with her father in the months before he died.

The group wants the Second Circuit to revive their claims alleging public nuisance, breach of the duty to provide a safe workplace and failure to timely pay Covid-19 leave. In dismissing the charges, U.S. District Judge Brian Cogan found that the duty to set Covid-19 standards for workers is one that belongs to the Occupational Safety and Health Administration, not the courts.

Public Justice attorney Karla Gilbride maintained Tuesday at oral arguments, however, that Congress did not intend for OSHA to preempt state law remedies. The Occupational Safety and Health Act “especially contemplated a dual enforcement regime," said Gilbride.

Representing Palmer et al., Gilbride also challenged the court's determination that Amazon’s conduct did not create a public nuisance. The company “increased the community spread to communities as a whole” by failing to protect its workers, she said. 

Because workers had to pit their own and their families’ health against their livelihood, some took unpaid leave, depriving themselves of income — and making their injury different in kind, not just in degree, compared to the general public’s risk of getting infected with the coronavirus. 

While the entire community was at risk for getting the virus, “not everyone encounters it directly because of Amazon’s conduct,” Gilbride said. She also noted how these dangers extend not just to workers, but to their roommates and relatives. As described in the workers’ brief, one of the plaintiffs believes she brought the virus home to her family — “and less than a month later awoke to find her cousin with whom she lived dead in their bathroom, after he had become ill with Covid-19 symptoms."

Amazon attorney Jason Schwartz urged the court to affirm deference to OSHA under the primary jurisdiction doctrine, calling judicial resolution a “square peg in a round hole” that the plaintiff workers are trying to force. 

The workers want the courts to decide how many boxes per hour they should be required to process, and how much time in the bathroom allows for safe hand-washing, Schwartz suggested.

“They’re not looking for damages,” he said. “They’re looking for regulation.” 

That regulation exists under OSHA, which is “very much engaged on this issue and has the necessary expertise,” Schwartz said — but the plaintiffs have not filed a complaint with the agency. 

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

In a statement about its appeal, Public Justice called out the district court for failing to give the workers, and their families, a chance to prove that Amazon failed to follow state Covid-19 safety measures. 

“Our clients seek policies that encourage taking adequate time to sanitize workplaces, true contact tracing, and clear communication from management about what Amazon workers should do if they’re experiencing symptoms or believe they have been exposed,” the company wrote, following dismissal of the federal complaint in November 2020. “We are confident that the Second Circuit will reverse the district court’s incorrect and dangerous decision.”

Amazon did not return requests for comment on Wednesday. 

The panel included U.S. Circuit Judges Denny Chin, William J. Nardini and Dennis G. Jacobs, who reserved judgment on the case. 

In the meantime, Amazon faces a state lawsuit from New York Attorney General Letitia James, who says her office began investigating the company during the early days of the pandemic. 

Amazon lost its fight to keep James’ suit in federal court, having argued in part that the suit mirrored Palmer’s federal complaint, as if it had been copied and pasted. 

In addition to Palmer’s written warning after he attended a protest, another employee, Christian Smalls, was fired for the same reason. 

“Since the pandemic began, it is clear that Amazon has valued profit over people and has failed to ensure the health and safety of its workers,” James said in a statement.

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