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  • Writer's pictureGary Visscher, Esq.

Amazon Lawsuits Bring Attention to Covid-19 Regulation and OSHA Preemption

Litigation involving Amazon and the Office of the Attorney General of New York is highlighting issues and questions about the scope of federal OSHA preemption regarding workplace regulation to protect workers from Covid-19.

In November 2020, in a lawsuit brought by a number of workers at a New York City warehouse, a federal district judge granted Amazon’s motion to dismiss claims brought under New York law, on the basis that the enforcement of those laws with regard to specific protections for workers against Covid-19 is preempted by federal OSHA. The federal court agreed that OSHA has not issued a standard specific to Covid-19, but noted that OSHA had issued guidance and enforced existing standards and the general duty clause, and had conducted inspections and issued citations based on those standards. The court also cited OSHA’s determination that “a standard ‘is not necessary at this time’ to combat this unprecedented pandemic because it has existing regulatory tools at its disposal ‘to ensure that employees are maintaining hazard-free work environments.” The federal district court’s decision dismissing the plaintiff’s claims in Palmer v. Amazon, (E.D.N.Y., November 1, 2020) is now on appeal to the Second Circuit, U.S. Court of Appeals.

Meanwhile, the New York Office of the Attorney General (OAG) continued with its investigation of workplace practices at the same Amazon warehouse. The OAG issued a preliminary assessment that Amazon had violated safety and health requirements, as well as retaliated against individual workers who were involved in the district court litigation. The OAG also threatened to bring suit against Amazon if a list of demands were not met.

On February 12, 2021, Amazon filed an unusual suit in the same U.S. District Court for the Eastern District of New York, seeking an injunction and declaratory relief against the OAG, to prevent the OAG from proceeding with an enforcement case against Amazon. In the complaint, Amazon argues that “the OSH Act preempts the OAG’s attempt to enforce OSHA standards or its own workplace safety preferences with respect to Amazon’s response to the COVID-19 pandemic. As the Palmer court noted, ‘New York … cannot enforce state occupational safety and health standards for issues covered by a federal standard.”

Generally, under section 18 of the OSH Act, states that do not have approved state OSHA programs are preempted from regulating “any occupational safety or health issue with respect to which no [federal OSHA] standard is in effect.” On the other hand, states with approved state OSHA plans (which include Virginia, Michigan, California, Oregon, and other states that have promulgated their own COVID-19 standards) may promulgate their own standards so long as those standards are “at least as effective as” any federal OSHA standards “which relate to the same issues.” New York’s state plan covers only public sector places of employment in the state, it is a non-State Plan state for purposes of private sector places of employment.

The issue in both the Palmer appeal and the recently brought Amazon case for injunctive relief against New York is whether federal OSHA’s combination of guidance and enforcement and its determination (under the Trump Administration) that “its existing regulatory tools …ensure that employers are maintaining hazard-free work environments” preempt non-State plan states from enforcing their own regulation regarding the same conditions and issues.

Of course, this may become moot if the Biden Administration promulgates its own federal standard on COVID-19. Such a standard would likely preempt non-state plan states from regulating or enforcing their own requirements regarding workplace protections against COVID-19.

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