By Braden Campbell

Law360 (November 2, 2020, 11:28 AM EST ) A New York federal judge has denied workers at Amazon's Staten Island warehouse a court order forcing the e-commerce giant to boost COVID-19 protections, defanging a novel suit alleging the company's pandemic policies amount to a "public nuisance."

U.S. Federal Judge Brian Cogan said it's the place of the Occupational Safety and Health Administration, not the courts, to decide whether Amazon is doing enough to protect workers at its JFK8 fulfillment center, dismissing without prejudice the workers' claims that Amazon's alleged inaction poses a public nuisance and that the company breached its duty to provide a safe workplace. The order is dated Sunday but was filed on the public docket Monday.

"Courts are not expert in public health or workplace safety matters, and lack the training, expertise, and resources to oversee compliance with evolving industry guidance," Judge Cogan said. "Plaintiffs' claims and proposed injunctive relief go to the heart of OSHA's expertise and discretion."

Though the dismissal is without prejudice, Judge Cogan's order effectively kills the workers' bid for immediate relief by kicking the dispute to OSHA. Judge Cogan also dismissed with prejudice a linked wage claim.

Workers in various roles at the JFK8 warehouse filed the high-profile suit in June seeking a court order making Amazon do a better job protecting workers from COVID-19, including by giving workers more time to complete their tasks and immediate access to paid time off they hadn't yet accrued.

The workers' legal team described the ruling as "devastating for the health and safety of Amazon workers nationwide" Monday and said they are weighing an appeal.

"The court's deference to the Occupational Safety & Health Administration should be very concerning to anyone who cares about the health of American workers, given that it has been virtually AWOL throughout this crisis," said attorneys for advocacy groups Public Justice, Make the Road New York and Towards Justice and law firm Terrell Marshall Law Group PLLC.

The case is one of a handful of coronavirus-related workplace safety suits that turn on a public nuisance theory, which allows government intervention to address public safety threats. The workers also alleged Amazon violated a state law requiring employers to keep workers safe and has been slow to pay workers who took paid leave for reasons tied to the pandemic.

Amazon urged Judge Cogan to defer to OSHA under the so-called doctrine of primary jurisdiction, which courts apply when suits implicate areas government agencies oversee. Second Circuit courts weigh several factors to decide whether an agency or a judge should get the first crack at a dispute, including whether the issue is within an agency's expertise and whether a court ruling would invite inconsistency. These factors show the case is OSHA's to resolve, Judge Cogan said.

The workers' demands for greater protection "turn on factual issues requiring both technical and policy expertise," including how Amazon's policies impact COVID-19 transmission and whether its rules are up to state and federal standards, Judge Cogan said. These are questions better left for OSHA, whose answers may conflict with the court's, he said.

"There is room for significant disagreement as to the necessity or wisdom of any particular workplace policy or practice," Judge Cogan said. "Courts are particularly ill-suited to address this evolving situation and the risk of inconsistent rulings is high."

The workers wouldn't have a case even if the court kept the suit, Judge Cogan added. To win a public nuisance case, a plaintiff must show they faced a "special injury beyond that suffered by the community at large," such as a "noxious landfill, a malarial pond" or another specific hazard, he said. In contrast, the risks of COVID-19 are "common to the New York City community at large," the judge said.

New York's workers' compensation law preempts the workers' claims for an injunction tied to Amazon's practices to date, and they can't sue over alleged future harm, Judge Cogan said. And Amazon doesn't have to pay out COVID-19 leave quickly because such "benefits and wage supplements" aren't covered by New York's law giving employers seven days to pay out wages earned in a given workweek.

Two of the advocacy groups representing the Staten Island workers have also asked a Pennsylvania federal court to make OSHA write up meatpacker Maid-Rite Specialty Foods for maintaining lax coronavirus safety policies. That suit is pending.

An Amazon representative did not immediately respond Monday to a request for comment.

The workers are represented by Karla Gilbride and Stephanie Glaberson of Public Justice PC; Juno Turner, David Seligman and Valerie Collins of Towards Justice; Elizabeth Jordan and Frank Kearl of Make the Road New York; and Beth Terrell, Toby Marshall, Amanda Steiner, Blythe Chandler and Erika Nusser of Terrell Marshall Law Group PLLC.

Amazon.com Inc. and Amazon.com Services LLC are represented by Jason Schwartz, Avi Weitzman, Zainab Ahmad and Karl Nelson of Gibson Dunn & Crutcher LLP.

The case is Palmer et al. v. Amazon.com Inc. et al., case number 20-cv-2468, in the U.S. District Court for the Eastern District of New York.

--Additional reporting by Vin Gurrieri, Lauren Berg and Craig Clough. Editing by Alyssa Miller.

Update: This story has been updated with additional information from the decision and with comments from counsel for the workers.

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