As COVID infection rates continue to rise in the United States, employees are increasingly looking for creative ways to hold employers liable for infections and unsafe conditions in the workplace. In a recent New York federal court case, Palmer v. Amazon, the plaintiff employees asserted claims against their employer for public nuisance and breach of duty to protect the health and safety of employees during the COVID-19 pandemic. In their pleadings, the plaintiffs alleged that Amazon created a public nuisance by failing to comply with applicable workplace guidance for worker safety in light of the COVID outbreak.
OSHA does not create a private right of action in individual employees; rather, the Act authorizes the agency to investigate employee complaints and take administrative action where necessary to correct worker safety violations. Employees who wish to sue an employer for injunctive relief or damages, therefore, have been searching for another theory of liability in order to hold employers liable for unsafe work conditions. In the Palmer case, the plaintiffs alleged that Amazon's failure to provide adequate safety measures promoted the possible spread of COVID and created a public nuisance. However, the plaintiffs' attempts to raise this novel claim did not succeed.
In striking the plaintiffs' nuisance claim, the court reasoned that the primary-jurisdiction doctrine applied to worker safety claims, and that the allegations should be resolved by OSHA. The doctrine of primary jurisdiction seeks to maintain a proper balance between the roles of courts and administrative agencies. Under the doctrine, courts may refer a matter to an administrative agency even when the court has jurisdiction to hear the underlying cause of action. The reason for the doctrine is to promote uniformity in a regulated community, and to rely on the expertise of the administrative agency.
In determining whether either of these purposes is served, courts typically consider the following four factors:
- Whether the question at issue is within the conventional expertise of judges or whether it involves technical or policy considerations within the agency's particular field of expertise;
- Whether the question at issue is particularly within the agency's discretion;
- Whether there exists a substantial danger of inconsistent rulings; and
- Whether a prior application to the agency has been made.
In its decision to apply the doctrine to the plaintiffs' nuisance claim, the court in Palmer noted that:
"The Occupational Safety and Health Administration is the federal agency within the Department of Labor specifically charged with regulating health and safety in the workplace. It has primary responsibility for setting and enforcing standards and providing research, information, education, and training to assure safe and helpful working conditions. OSHA has broad prosecutorial discretion to carry out its enforcement responsibilities under the Occupational, Safety and Healthy Act."
In addition to these factors, the court noted that OSHA has a robust program for receiving and responding to worker complaints, bringing and enforcing administrative actions against employers found to be in violation of OSHA standards, and an administrative process for review of OSHA enforcement actions.
The court easily found that the plaintiffs' claims turned on factual issues requiring both technical and policy expertise, and that the plaintiffs' claims therefore went to the heart of OSHA's expertise and discretion. In addition, the court found that the risk of inconsistent rulings further weighed in favor of applying the doctrine of primary jurisdiction. The case involved the application of state and federal health and safety standards addressing workplace safety during a pandemic for which there is currently no end in sight. Courts, they reasoned, are particularly ill-suited to address this evolving situation and the risk of inconsistent rulings is high. Court imposed workplace policies could subject an industry to vastly different, costly regulatory schemes in a time of economic crisis; whereas, a determination by OSHA could ensure uniformity. For these reasons, the court applied the doctrine of primary jurisdiction to deny the plaintiffs' causes of action for negligence against their employer.
SGR will continue to follow this issue as it develops in other courts and jurisdictions. In the meantime, if you have questions about this or other worker, health and safety issues in your work place, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.
Originally Published by Smith Gambrell, November 2020
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