Amazon Faces Virus-Related Probes At San Francisco Facility

By Mike LaSusa
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Law360 (July 27, 2020, 10:55 PM EDT) -- State and local authorities in California are looking into the measures that an Amazon grocery warehouse in San Francisco has taken in response to the COVID-19 pandemic, according to a court order issued Monday in a worker's case over the facility's allegedly lax virus precautions.

San Francisco Superior Court Judge Ethan P. Schulman said in his order that the California Attorney General's Office, the Division of Occupational Safety and Health of California's Department of Industrial Relations and the San Francisco Department of Public Health have all opened probes of the warehouse.

Two of those agencies — Cal/OSHA and San Francisco's public health department — have inspected the facility within the last two weeks, Judge Schulman said, using the probes to support his decision to deny a request to force Amazon to bolster its efforts to keep employees safe from the coronavirus.

"The factual record, while complex and disputed, does not clearly establish the existence of ongoing serious regulatory violations that pose an imminent risk of irreparable harm to Amazon employees or the public," the judge said, noting that there had been no confirmed COVID-19 cases at the facility.

Judge Schulman's ruling turned down a request by Chiyomi Brent, a worker at the San Francisco facility who sued Amazon in June after filing complaints with Cal/OSHA and the city over alleged failures to comply with proper sanitizing and social distancing procedures.

Brent asked for an emergency order forcing Amazon to boost its cleaning efforts, ensure distancing and mask use and perform contact tracing on anyone who might have had COVID-19 while at the facility.

But Judge Schulman said he didn't think a court order was necessary in light of the ongoing probes, saying the court would be "ill-equipped" to oversee the Amazon facility's compliance with virus-related regulations whereas the responsible public bodies are already looking into that issue.

The judge also said it seemed like Amazon had "improved its practices and policies over time as it attempts to react to a fast-moving and unprecedented global health crisis, and to evolving regulatory requirements."

"Amazon doubtless could still further improve its health and safety practices," he said. "But perfection is not the standard."

San Francisco city attorney Dennis Herrera said in a statement Monday that the city's recent inspection of the warehouse found that Amazon had taken steps to fix issues identified during an earlier visit, and didn't identify any new violations.

"We continue to monitor the situation," Herrera said.

Counsel for Amazon and Brent did not respond Monday to requests for comment. The attorney general's office and Cal/OSHA declined to comment.

An Amazon warehouse on the other side of the country has also come under scrutiny for alleged missteps in its response to the pandemic.

Six total plaintiffs — workers and their loved ones — said in a June complaint in New York federal court that Amazon's failure to keep its JFK8 warehouse in Staten Island safe during the COVID-19 pandemic led to the death of at least one worker and caused others to bring the virus home.

The judge in that case said last week that he is "not entirely comfortable" with assessing health and safety conditions at the Staten Island facility, telling counsel for the workers seeking bolstered protections that they may have to turn to the federal Occupational Safety and Health Administration.

The workers in that case dropped a bid earlier this month for immediate changes to the warehouse's policies, pointing to new measures promised by Amazon, though their motion to change course drew an admonishment from the judge, who said it looked like a press release instead of a legal argument.

Workers at that warehouse went on strike over Amazon's virus response back in March. New York Attorney General Letitia James later issued a statement criticizing Amazon's firing of a worker who led the walkout.

Republican lawmakers on Capitol Hill have championed a proposal to provide a liability shield for businesses as part of the next COVID-19 relief package. Plaintiffs attorneys and consumer advocacy groups have decried the proposal as "morally reprehensible" as it could result in an increase in infections.

Brent is represented by Jennie Lee Anderson and Audrey Siegel of Andrus Anderson LLP, and Kay Van Wey and Ellen Presby of Van Wey Presby & Williams PLLC.

Amazon is represented by Jason S. Mills, Nicholas A. Armer and Aleksandr Markelov of Morgan Lewis & Bockius LLP.

The case is Chiyomi Brent v. AmazonFresh LLC et al., case number, CGC-20-584828, in the Superior Court of California, County of San Francisco.

--Additional reporting by Pete Brush, Jon Steingart, Y. Peter Kang and Braden Campbell. Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.

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