On November 2, 2020, the Eastern District of New York issued a notable decision regarding an employer's compliance with federal and state public health law during the COVID-19 pandemic. This is not the only case of its kind during the pandemic, and we certainly don't expect that it will be the last as employers should be prepared to defend claims that they did not follow the governing health protocols or otherwise ensure the health and safety of their employees.
In Palmer, et al. v. Amazon.Com, Inc., et al., case number 20-cv-2468 (E.D.N.Y. 2020), employees working at an Amazon fulfillment center on Staten Island, New York, and members of their households, brought claims against the online retailer. The plaintiffs asserted Amazon's actions constituted a public nuisance and it failed to provide a safe workplace under federal and New York COVID-19-workplace guidance. The plaintiffs also alleged that the employer failed to timely pay New York State COVID-19 sick leave.
Against the background of the COVID-19 pandemic, the court noted the CDC's recommendations that employers (i) take steps to reduce transmission of the virus at the workplace, (ii) develop flexible leave policies, and (iii) reduce face-to-face contact between employees. Likewise, New York State guidance requires employers to, among other things, operate at reduced capacity, stagger shifts and tasks to minimize congestion, and conduct regular cleaning. The New York State COVID-19 Paid Sick Leave Law also requires large employers like Amazon to provide at least two weeks of paid sick leave to employees subject to a COVID-19 quarantine order.
In this case, plaintiffs argued "Amazon's productivity requirements prevent[ed] employees from engaging in basic hygiene, sanitization, and social distancing[,]" causing employees to skip hand washing, skip sanitizing workplaces, and operate in a way that prevented social distancing in the facility. Plaintiffs further claimed the air conditioning at the facility was only available in certain areas, preventing proper social distancing, and Amazon's employee contact tracing was inadequate.
Plaintiffs also argued Amazon did not apply the New York COVID-19 leave law appropriately by failing to clearly communicate the availability of leave and promptly pay employees who took leave. Further, they argued Amazon's existing leave policies were inadequate and did not encourage employees to take leave if they experienced symptoms of COVID-19.
The Court's Decision
The court dismissed the plaintiffs' public nuisance and breach of duty to provide a safe workplace claims, finding that the primary-jurisdiction doctrine applied. This doctrine allows courts to defer ruling on matters that should be left to the discretion of an appropriate administrative agency to decide. Here, the court explained that the federal Occupational Safety and Health Administration (OSHA) is specifically charged with regulating health and safety in the workplace, and has broad discretion to enforce the Occupational Safety and Health Act. According to the court, "the central issue in this case is whether Amazon's workplace policies at [the fulfillment center] adequately protect the safety of its workers during the COVID-19 pandemic." In that regard, the court found OSHA is the proper actor "to strike a balance between maintaining some level of operations in conjunction with some level of protective measures" because it has the expertise and discretion to analyze whether Amazon's employment practices created an unsafe workplace or otherwise complied with applicable guidance.
The court further noted that even if the primary-jurisdiction doctrine did not apply, the plaintiffs' public nuisance claim would fail because the claim requires plaintiffs' injury be different in kind from any injury suffered by the public. Here, the plaintiffs' alleged injuries - that is, increased risk of contracting COVID-19 and related fear of the same - is a risk common to the public and importantly, the public cannot avoid contracting COVID-19 simply by avoiding the fulfillment center or its employees.
With regard to the plaintiffs' breach of duty to provide a safe workplace claim brought under the New York Labor Law, the court found this claim to be essentially a negligence claim. The court found to the extent the claim was based on a past harm, that plaintiffs' safe workplace claim was barred by New York State's Workers' Compensation Law, which bars employees from bringing negligence claims against employers arising from workplace injuries or illnesses. To the extent the claim was based on the threat of future harm, it failed because negligence claims cannot be brought for potential future harm that has not yet occurred.
Finally, the court dismissed the plaintiffs' claims that Amazon failed to pay COVID-19 sick leave, finding that COVID-19 leave pay is not 'wages' for purposes of the New York Labor Law's pay requirements. Despite the New York State Department of Labor's (NYDOL) COVID-19 "Frequently Asked Questions" webpage stating that COVID-19 paid sick leave is subject to the State's frequency of pay requirements, and the court's recognition that an agency's consistent and long-standing interpretation of a law it administers is entitled to deference, the court found the NYDOL's position was in fact not entitled to deference. Specifically, the court found that the Department's stance conflicted with prior guidance stating that paid sick time is generally not a benefit for which the Labor Law imposes a prescribed method of payment.
The court's ruling is notable for many reasons, including insofar as it recognizes that determining whether an employer complied with workplace safety standards is best left to OSHA, the federal agency that is suited to analyzing such issues. The case is also a reminder that New York's Workers' Compensation Law provides a strong defense to claims of workplace injuries that were allegedly the result of an employer's negligence, including when it comes to implementing the health and safety requirements that employers must follow during the COVID-19 pandemic. Of course we will continue to monitor this case, and others like it, and report on any noteworthy developments.
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