By Y. Peter Kang

Law360 (August 26, 2020, 10:16 PM EDT) -- Amazon workers claiming the e-commerce company's Staten Island warehouse conditions pose a COVID-19 risk blasted their employer's recent suggestion that they take their concerns to the Occupational Safety and Health Administration, saying the agency is riding out the pandemic on the "sidelines."

Derrick Palmer and six others claim Amazon's failure to keep its JFK8 warehouse safe during the COVID-19 pandemic has led to the death of at least one worker and allowed infected workers to spread the virus among family members. The workers took umbrage at Amazon's assertion that their suit is essentially an attempt to make an end run around OSHA, which Amazon argues has the authority to regulate workplace safety and health conditions, according to a Tuesday filing.

The plaintiffs told U.S. District Judge Brian Cogan that OSHA, "an agency that has affirmatively decided to ride out the pandemic on the sidelines," need not be involved because their claims are grounded in state law rather than federal workplace safety laws and regulations.

"Not only does this case not call upon OSHA's special expertise; it does not even attempt to enforce the laws that OSHA is charged with enforcing — or federal law at all," the filing stated. "Plaintiffs' state law claims rely principally on New York's 'minimum requirements' for businesses operating during the pandemic and New York leave law ... It defies reason and the principles of federalism to suggest that when New York promulgated those requirements it surrendered its jurisdiction to enforce them to a federal agency."

Amazon filed a motion to dismiss on Aug. 11 claiming that 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, can't be traced back to Amazon given New York City's high population and congested public transportation system.

But the plaintiffs said Tuesday that their public nuisance claim should be allowed to proceed because they are being put at a direct risk in ways the general public is not, which could lead to an increased likelihood of spreading the virus.

"Plaintiffs are no different from the neighbors to a landfill emitting toxins," they said. "The public generally may suffer because, in order to avoid those toxins, they must avoid certain public spaces, but the neighbors lack that option and so they suffer directly when those toxins enter their homes."

An attorney for Amazon declined to comment. An attorney for the plaintiffs did not immediately respond to a request for comment.

The plaintiffs said in an amended complaint filed in July 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.

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

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

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.

--Additional reporting by Amanda Ottaway. Editing by Daniel King.

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