By Amanda Ottaway

Law360 (August 12, 2020, 5:38 PM EDT ) Amazon workers who filed a suit claiming the company's Staten Island warehouse conditions pose a COVID-19 risk should take their complaints to the Occupational Safety and Health Administration, the e-commerce behemoth told a New York federal judge.

In a memorandum supporting its motion to dismiss the suit Tuesday, Amazon told U.S. District Judge Brian Cogan the employees' workplace safety claims went too far and that their public nuisance claims, which assert a risk to public health due to allegedly lax COVID-19 protocols at the facility, are impossible to investigate in a city like New York.

Amazon also repeated its accusation that the employees are trying to "exploit" the pandemic to further their own agenda on workplace safety.

"Plaintiffs' amended complaint asks this court to wade deeply into the rapidly changing standards of COVID-19 workplace safety, enforce non-binding agency guidance as if it were law, and manage the day-to-day operations and human resources practices of Amazon's JFK8 facility," the tech giant wrote.

OSHA has already been dealing with COVID-19 prevention in the workplace through site visits and investigations, Amazon said Tuesday, and it has "special expertise" in keeping workplaces safe. Judge Cogan has already indicated he's leaning toward shunting the dispute to OSHA as well, saying in a hearing last month that he was "not entirely comfortable" making safety judgments.

Additionally, pushing the dispute to OSHA would also help maintain consistency over workplace standards during the pandemic, Amazon argued.

Amazon, whose pandemic net profits soared to $5.2 billion last quarter, allegedly failed to take proper precautions to protect the employees in its Staten Island warehouse, leading to the deaths of at least one employee and workers' family members after they brought the virus home. Over a dozen Democratic members of Congress, including Rep. Alexandria Ocasio-Cortez, Sen. Cory Booker and Sen. Bernie Sanders, signed on to an amicus brief on behalf of the workers.

The plaintiffs' claims that Amazon's COVID-19 policies are a public nuisance because they affect public health also fail, Amazon argued, because of the impossibility of tracing the origins of a COVID-19 case. Warehouse workers use public transportation, spend time with their families and grocery shop, all activities that carry risk of exposure, the company argued. In short, the risk of bringing the virus home is a risk for all New Yorkers, Amazon said.

In any case, the company added, it would be unreasonable to allow everyone to file a lawsuit against those they thought exposed them to the virus.

The company additionally rebutted the workers' demands for their sick pay in a timely manner, saying that under New York labor law, sick time — including paid COVID-19 leave — is not earnings but a benefit, and the law the workers cited does not provide a right to benefits.

The plaintiffs said in an amended complaint filed last month that instead of a jury trial, they want Judge Cogan to declare Amazon's COVID-19 practices a public nuisance and guarantee them immediate access to 48 hours of paid time off and at least 14 days of paid COVID-19 leave, among other safety and social distancing demands as well as damages.

Juno Turner, litigation director at Towards Justice and counsel for the plaintiffs, said in an email Wednesday that the suit raises important health and safety concerns under New York law, in the absence of an official COVID-19 standard from OSHA. Emergency legislation signed by Gov. Andrew Cuomo in March also guarantees the workers the right to receive their COVID-19 sick leave payments, she added.

"Amazon's arguments that OSHA has primary jurisdiction over this matter are misplaced, particularly in light of OSHA's enforcement guidance regarding COVID-19, which makes clear that it will not be prioritizing safety concerns like those raised by our clients," Turner wrote. 

Counsel for Amazon declined to comment Wednesday. 

Amazon is represented by Jason C. Schwartz, Avi Weitzman, Zainab N. Ahmad, and Karl G. Nelson of Gibson Dunn & Crutcher LLP.

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

The case is Palmer et al. v. Amazon.com Inc. et al., case number 1:20-cv-02468, in the U.S. District Court for the Eastern District of New York.

--Editing by Haylee Pearl.

Update: This story has been updated to include comment from plaintiffs' counsel. 

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