By Pete Brush

Law360, New York (May 19, 2021, 3:48 PM EDT ) Federal judges should be willing and able to assess COVID-19 workplace safety, counsel for Amazon.com workers told the Second Circuit Wednesday, after an appellate judge sympathized with the jurist who kicked their case to the Occupational Safety and Health Administration.

The back-and-forth came during a virtual argument before Circuit Judges Dennis Jacobs, Denny Chin and William J. Nardini in a challenge by Staten Island warehouse workers to Brooklyn U.S. District Judge Brian Cogan's decision last year not to take jurisdiction over their claims that the retail giant directly exposed them and their families to the deadly virus.

In throwing out the suit brought by plaintiffs including workers Derrick Palmer and Barbara Chandler — who claims she lost a family member after contracting the virus as a result of unsafe Amazon practices — Judge Cogan said courts like his are "particularly ill-suited" to address the "evolving situation" presented by the coronavirus.

"Court-imposed workplace policies could subject the industry to vastly different, costly regulatory schemes in a time of economic crisis. A determination by OSHA, on the other hand, would be more flexible and could ensure uniformity," Judge Cogan held.

On Wednesday, Judge Cogan received a vote of sympathy on that score from Judge Jacobs, who asked if courts should be making determinations about social distancing, masking and other virus-fighting measures amid an evolving patchwork of rules and laws and an ongoing pandemic.

"How is Judge Cogan to be making these kinds of decisions? What's his expertise?" Judge Jacobs asked counsel for the plaintiffs.

In response, their lawyer Karla Gilbride didn't share the same measure of solicitude for the comfort level of federal judges in taking on tough cases. She said Judge Cogan could readily have consulted available public health guidance to assess if Amazon's alleged conduct was up to a proper standard.

"The court doesn't need to wait for OSHA to do something," she said. "To the extent that there's helpful guidance that's relevant, the court can consult that. There are certainly multiple situations where courts deal with scientifically complex material."

Amazon's lawyer, Jason Schwartz, countered that Judge Cogan "wisely" left the issue to the regulatory agency.

"There's no way for a court to tackle the questions that the plaintiffs have posed," he said. "OSHA is very much engaged in this issue and has the necessary expertise. The plaintiffs still have not brought a claim to OSHA. They still haven't knocked on OSHA's door."

It was unclear how the circuit would come out on that question or if it would spend time on it at all. The doctrine of primary jurisdiction under which Judge Cogan punted to OSHA gives judges latitude in deciding the "proper balance" between the role of courts and government agencies.

At Judge Chin and Judge Nardini's request, Gilbride also said the circuit — or the Court of Appeals, the state's highest court in Albany — should reject Judge Cogan's legal finding that workers are barred from seeking injunctive relief against employers under New York's Workers' Compensation Law.

According to Judge Cogan, the statute's exclusivity provision provides no-fault compensation for workers in exchange for "any other liability whatsoever," including injunctive relief.

"It is difficult to imagine a broader phrase than 'any other liability whatsoever,'" Judge Cogan wrote.

But Judge Cogan did not look at the overall context of the statute, which deals chiefly in compensating workers, in making that finding, Gilbride argued.

"It doesn't take remedies off the table entirely, which is what the district court's view would do," she said. "This is an issue of first impression under New York law. Although there is consensus among other states … that injunctive remedies were not intended to be barred."

Schwartz, meanwhile, told the court that Judge Cogan got it right.

"They get the benefit of no-fault cash compensation. In exchange, they give up any other liability whatsoever in court," he said.

Judge Chin hinted that he might be inclined to side with the plaintiffs on that score, suggesting injunctive relief "would seem not to be covered by the statute at all" and thus would not be properly proscribed.

The plaintiffs are represented before the circuit court by Karla Gilbride of Public Justice PC.

Amazon is represented by Jason Schwartz of Gibson Dunn & Crutcher LLP.

The appeal is Palmer et al v. Amazon.com, case number 20-3989, in the U.S. Court of Appeals for the Second Circuit.

--Editing by Philip Shea.

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