Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 1 of 64 PageID #: 1
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`AMAZON.COM, INC.,
`
`Plaintiff,
`
`v.
`
`ATTORNEY GENERAL LETITIA JAMES, in
`her official capacity as the Attorney General of
`the State of New York,
`
`Defendant.
`
` Case No.
`
`21-CV-767
`
` COMPLAINT
`
`Plaintiff Amazon.com, Inc. (“Amazon” or “Plaintiff”), by and through its undersigned
`
`counsel, brings this action for declaratory and injunctive relief from the New York Attorney
`
`General’s unlawful attempts to subject Amazon—at its JFK8 fulfillment center in Staten Island
`
`and DBK1 delivery station in Queens—to state oversight of activities governed by federal law and
`
`enforced by federal regulators, and alleges as follows:
`
`NATURE OF THE CASE
`
`1.
`
`Amazon is an essential business providing much-needed supplies and jobs in its
`
`communities. Amazon has been intensely focused on COVID-19 safety, and has taken
`
`extraordinary, industry-leading measures grounded in science, above and beyond government
`
`guidance and requirements, to protect its associates from COVID-19, earning praise from health
`
`and safety officials and law enforcement officers.
`
`2.
`
`In developing its response to the COVID-19 pandemic, Amazon has not only relied
`
`on its team of top health and safety professionals but also engaged with over 20 leading global
`
`medical and health experts, including pandemic response doctors, epidemiologists, and industrial
`
`1
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 2 of 64 PageID #: 2
`
`
`
`hygienists, to identify and implement best practices. Based on guidance from these experts,
`
`Amazon has implemented over 150 process changes to promote social distancing, hygiene, and
`
`the safety of its associates, often well before New York State officials and federal officials
`
`recommended analogous measures.
`
`3.
`
`In order to protect its employees, in March 2020, Amazon expanded its paid and
`
`unpaid leave programs in light of the pandemic, required associates to observe social distancing,
`
`formalized its contact tracing process, and instituted daily temperature checks of all Amazon
`
`associates entering select sites, including its JFK8 fulfillment center in Staten Island, prior to
`
`expanding temperature checks to the entire U.S. operations network. Amazon directed anyone
`
`registering a temperature over 100.4 ºF (or lower where required by state or local authorities) to
`
`return home and only come back to work after they have gone three days without a fever. Amazon
`
`also staggered shift times, rearranged facilities, break rooms and work stations, and instituted
`
`enhanced cleaning protocols. In April 2020, Amazon distributed face masks to all associates and
`
`required that they be worn at all times by anyone in its facilities. It also began daily disinfectant
`
`spraying. By November 2020, Amazon had even built its own COVID-19 testing capacity and
`
`laboratories, and began testing its workforce for asymptomatic cases of COVID-19.
`
`4.
`
`Amazon’s efforts far exceed what is required under the law, and, as discussed
`
`below, go well beyond measures that the Office of the New York Attorney General (“OAG”) has
`
`deemed comprehensive. Following an unannounced inspection of JFK8 on March 30, the New
`
`York City Sheriff’s Office—which was charged by the Mayor with enforcing COVID-19 safety
`
`requirements—stated that “[t]he facility appeared to go above and beyond the current compliance
`
`requirements” based on “the facility’s temperature screening procedure which is required to enter
`
`the facility”; “numerous legible signs explaining the six-foot social distancing policy”; “taped
`
`
`
`2
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 3 of 64 PageID #: 3
`
`
`
`indicators on the floor to enforce this policy”; “work areas, which had every other desk space shut
`
`down so that no employees were within the vicinity of any other employee”; a breakroom that
`
`“appeared to be in strict compliance”; and Amazon’s “staggering [of] employee shifts to both
`
`minimize the amount of staff in the facility at once, and to reduce the amount of staff that was
`
`entering and exiting the building at once to further promote social distancing.” The Sheriff’s
`
`lieutenant who led the inspection concluded that complaints about JFK8 were “completely
`
`baseless” and that “there were absolutely no areas of concern.”
`
`5.
`
`The data corroborates these independent law enforcement findings—the COVID-
`
`19 infection rate among Amazon and Whole Foods Market front-line employees in New York is
`
`half that of New York’s general population. And this likely materially understates the
`
`effectiveness of Amazon’s health and safety measures because case rates do not distinguish
`
`between infections that occurred in the community versus those that were work-related. As the
`
`U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”) has
`
`recognized, “[g]iven the nature of the disease and ubiquity of community spread . . . in many
`
`instances it remains difficult to determine whether a COVID‐19 illness is work‐related, especially
`
`when an employee has experienced potential exposure both in and out of the workplace.”1
`
`6.
`
`Amazon takes the health and safety of its employees extremely seriously, and it has
`
`taken appropriate steps to enforce its health and safety protocols for the protection of its entire
`
`workforce. This is exactly what Amazon did with respect to Christian Smalls and Derrick Palmer,
`
`two associates at Amazon’s JFK8 facility who committed severe health and safety violations.
`
`
`1 Patrick J. Kapust, Acting Director, Directorate of Enforcement Programs, Revised Enforcement
`Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (May 19, 2020),
`https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-
`coronavirus-disease-2019-covid-19.
`
`
`
`3
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 4 of 64 PageID #: 4
`
`
`
`7.
`
`Amazon terminated Mr. Smalls’ employment after he repeatedly violated social
`
`distancing requirements and an order to quarantine and stay off Amazon property—for which he
`
`was paid—due to a potential COVID-19 exposure. Amazon issued a final warning to Mr. Palmer
`
`for failing to comply with social distancing requirements.
`
`8.
`
`Amazon necessarily took these actions because Mr. Smalls and Mr. Palmer
`
`deliberately violated Amazon’s health and safety rules and directives and knowingly placed
`
`themselves and their co-workers at risk.
`
`9.
`
`However, within hours of Mr. Smalls’ termination, and before conducting any
`
`investigation to ascertain these or any other facts, the New York Attorney General publicly
`
`condemned Amazon’s termination of Mr. Smalls.
`
`10.
`
`The OAG then launched and pursued an investigation of Amazon’s COVID-19
`
`response. Less than a month later and based on its cursory investigation to that point, the OAG
`
`took the highly unusual step of making a “preliminary assessment” that Amazon had violated
`
`safety requirements—including the federal Occupational Safety and Health Act (“OSH Act”) and
`
`its regulations—in connection with Amazon’s response to the COVID-19 pandemic, and that
`
`Amazon had unlawfully retaliated against Mr. Smalls and Mr. Palmer. The OAG’s letter to
`
`Amazon containing the preliminary assessment did not mention the New York City Sheriff’s
`
`Office’s findings that Amazon went “above and beyond” applicable compliance requirements and
`
`that complaints to the contrary were “baseless,” or include any other facts favorable to Amazon.
`
`11.
`
`From the outset of the OAG’s investigation, Amazon provided the OAG with
`
`extensive information about its extraordinary efforts to protect its associates against COVID-19.
`
`Amazon also provided evidence of its compelling safety-related reasons for taking action against
`
`Mr. Smalls and Mr. Palmer, including photographs of Mr. Smalls violating Amazon’s social
`
`
`
`4
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 5 of 64 PageID #: 5
`
`
`
`distancing guidelines at the JFK8 facility after Amazon instructed him to quarantine for a potential
`
`COVID-19 exposure. The evidence showed that Mr. Smalls not only failed to comply with social
`
`distancing requirements, but that, as someone directed to quarantine, he was required to stay off
`
`Amazon property—and was paid for doing so—yet he violated those clear requirements by
`
`returning to the JFK8 property.
`
`12.
`
`Nevertheless, the OAG refused to give any weight to the substantial amount of
`
`detailed information and documents that Amazon provided regarding its comprehensive health and
`
`safety program or the New York City Sheriff’s Office’s reports—information that squarely rebuts
`
`the OAG’s preliminary assessments. Instead, the OAG continued to claim that Amazon violated
`
`health and safety standards and retaliated against Mr. Smalls and Mr. Palmer.
`
`13.
`
`The OAG has now threatened to sue Amazon if it does not immediately agree to a
`
`list of demands, many of which have no connection to health and safety and have no factual or
`
`legal basis. Among other things, the OAG has demanded that Amazon “disgorge” profits,
`
`subsidize public bus service, reduce its production speeds and performance requirements, reinstate
`
`Mr. Smalls and pay large sums to Mr. Smalls and Mr. Palmer for “emotional distress,” retain a
`
`health and safety consultant to oversee safety and production, and adopt safety-related policies it
`
`already implemented.
`
`14.
`
`The OAG’s exorbitant demands are based on a standard for workplace health and
`
`safety far more stringent than the standard adopted by the OAG when defending, in other litigation,
`
`the New York State Courts’ reasonable but more limited safety response to COVID-19 in the face
`
`of threats greater than those present in Amazon’s private facilities. The New York State Courts,
`
`for example, implemented temperature screening months after Amazon, and, unlike Amazon, has
`
`not developed its own testing capacity and provided free tests to its employees. Nevertheless, in
`
`
`
`5
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 6 of 64 PageID #: 6
`
`
`
`that litigation, the OAG has claimed that the New York State Courts’ measures were “a
`
`comprehensive regime” that was “reasonable, effective, and necessary in minimizing exposure.”
`
`State Br. 2, Quirk v. Difiore, No. 1:20-cv-5027, ECF No. 23 (S.D.N.Y. Aug. 7, 2020) (“Quirk
`
`Opp.”). Further, the OAG argued that “no COVID-19 protection regime is or can be perfect,” and
`
`courts should not rely on “unsupported and
`
`inflammatory assertions about safety,”
`
`“unaccompanied by supporting evidence,” and “contradicted by the evidence supplied by the
`
`[employer].” Id. at 19, 21. Amazon agrees.
`
`15. More fundamental than applying an inconsistent and incorrect standard, the OAG
`
`lacks the legal authority it purports to wield against Amazon. The federal OSH Act preempts the
`
`OAG’s use of state law to regulate workplace safety, and, as this Court has already held in litigation
`
`brought by Mr. Palmer concerning the very subject matter of the OAG’s investigation, OSHA has
`
`primary jurisdiction over workplace safety claims brought under New York Labor Law Section
`
`200. Moreover, the National Labor Relations Act (“NLRA”) preempts the OAG’s claims that
`
`Amazon retaliated against Mr. Smalls and Mr. Palmer for organizing and participating in protests
`
`regarding working conditions at JFK8, and the U.S. National Labor Relations Board (“NLRB”)
`
`has authority for enforcement of this federal law. Even if the New York Labor Law were not
`
`preempted in these circumstances, the Labor Law provisions on which the OAG relies create only
`
`a private right of action by the individual who is the victim of the alleged retaliation—and here,
`
`Mr. Smalls and Mr. Palmer are already pursuing their own private actions with their own counsel.
`
`16.
`
`Finally, in making its demands, the OAG fails to recognize the significant ways in
`
`which Amazon has addressed and continues to address the OAG’s purported concerns. Amazon
`
`has invested approximately $10 billion on COVID-related initiatives to keep associates safe and
`
`deliver essential products to customers, including $800 million in the first half of 2020 alone on
`
`
`
`6
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 7 of 64 PageID #: 7
`
`
`
`COVID-19 safety measures. Amazon already voluntarily offered to provide subsidized bus service
`
`to the MTA, but the MTA rejected Amazon’s offer. Amazon already modified its production
`
`speeds and performance requirements to accommodate COVID-19 safety measures. And Amazon
`
`already retained some of the world’s leading experts to inform the company’s efforts to address
`
`the threat posed by COVID-19.
`
`17.
`
`Amazon cannot accept the OAG’s attempt to subject Amazon to an inconsistent
`
`and unfair standard for workplace safety that is preempted by federal law and assigned to the
`
`primary jurisdiction of federal regulators—especially when the underlying facts show that Amazon
`
`has done an exemplary job responding to an unprecedented global pandemic. Since the start of
`
`the OAG’s investigation, Amazon has been open and transparent with the OAG about Amazon’s
`
`response to the COVID-19 pandemic and its actions against Mr. Smalls and Mr. Palmer. Amazon
`
`shared voluminous information with the OAG in a good-faith effort to address the OAG’s
`
`concerns, even though the OAG lacked jurisdiction to regulate workplace health and safety and
`
`employees’ concerted activities. Amazon is proud of the measures it has taken to protect the health
`
`and safety of its workers. But now, the OAG, without jurisdiction, is demanding relief that is not
`
`appropriate or warranted and is threatening to publicly sue if Amazon does not submit to the
`
`OAG’s unreasonable terms. The OAG’s threats and unwarranted demands are not tethered to the
`
`facts or the law, and thus Amazon must now seek relief in this Court.
`
`18.
`
`The federal courts have both the jurisdiction and the authority to enjoin the OAG
`
`from usurping powers created by federal law and reserved to federal regulators. “A plaintiff who
`
`seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a
`
`federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus
`
`presents a federal question which the federal courts have jurisdiction . . . to resolve.” Cable
`
`
`
`7
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 8 of 64 PageID #: 8
`
`
`
`Television Ass’n of N.Y., Inc. v. Finneran, 954 F.2d 91, 94 (2d Cir. 1992) (quotation marks
`
`omitted). This lawsuit therefore seeks a declaration that, as applied to the facts of this case, the
`
`state laws that the OAG seeks to enforce are preempted by federal law and an injunction against
`
`the OAG’s ongoing misuse of those laws against Amazon.
`
`PARTIES
`
`19.
`
`Plaintiff Amazon.com, Inc. is a Delaware corporation with its principal place of
`
`business in Seattle, Washington.
`
`20.
`
`Defendant Letitia James is the Attorney General of the State of New York. She is
`
`sued in her official capacity.
`
`JURISDICTION AND VENUE
`
`21.
`
`This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331
`
`and 28 U.S.C. § 1343(a)(3). This action arises under the Supremacy Clause of the United States
`
`Constitution, the OSH Act, 29 U.S.C. § 651 et seq., the NLRA, 29 U.S.C. § 151 et seq., and the
`
`Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
`
`22.
`
`Because Amazon “seeks injunctive relief from state regulation, on the ground that
`
`such regulation is pre-empted by a federal statute,” it has “present[ed] a federal question which the
`
`federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve.” Shaw v. Delta Air Lines, Inc.,
`
`463 U.S. 85, 96 n.14 (1983); see also Cable Television Ass’n of N.Y., Inc. v. Finneran, 954 F.2d
`
`91, 93-95 (2d Cir. 1992) (concluding that district court had subject matter jurisdiction over action
`
`seeking a declaration that state regulation “was pre-empted by [federal law]” and “an injunction
`
`barring the state from enforcing the regulation”).
`
`
`
`8
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 9 of 64 PageID #: 9
`
`
`
`23.
`
`To the extent this action raises questions regarding the New York Labor Law or the
`
`New York Workers’ Compensation Law, this Court has supplemental jurisdiction under 28 U.S.C.
`
`§ 1367(a).
`
`24.
`
`Venue is proper in this District under 28 U.S.C. § 1391(b)(2) because a substantial
`
`part of the events or omissions giving rise to Amazon’s claims occurred in this District.
`
`STATEMENT OF THE CASE
`
`25.
`
`As the Eastern District of New York has recognized, “[r]egulating in the age of
`
`COVID-19 is a dynamic and fact-intensive matter fraught with medical and scientific uncertainty.”
`
`Palmer v. Amazon.com, Inc., No. 20-cv-2468 (BMC), --- F. Supp. 3d ---, 2020 WL 6388599, at *6
`
`(E.D.N.Y. Nov. 2, 2020). Because “[t]here is room for significant disagreement as to the necessity
`
`or wisdom of any particular workplace policy or practice,” “[c]ourt-imposed workplace policies
`
`could subject the industry to vastly different, costly regulatory schemes in a time of economic
`
`crisis.” Id. As a result, the court has held that “[c]ourts are particularly ill-suited to address this
`
`evolving situation” and that it was for OSHA, not the courts, to “strike a balance between
`
`maintaining some level of operations in conjunction with some level of protective measures.” Id.
`
`26. With respect to Amazon specifically, the Eastern District of New York recognized
`
`that Amazon’s “JFK8 [facility] is not the source of COVID-19,” and that “[t]he public at large
`
`cannot avoid COVID-19 simply by avoiding JFK8, its immediate surrounding area, and its
`
`employees.” Palmer, 2020 WL 6388599, at *7. Rather, “the public risks exposing themselves to
`
`COVID-19 nearly anywhere in this country and the world.” Id.
`
`27.
`
`Despite this clear precedent regarding the nature of the threat posed by COVID-19
`
`and the primary role of federal regulators in combatting this threat, the OAG seeks to penalize
`
`Amazon—without a legal or factual basis—based on an alleged failure to meet a standard for
`
`
`
`9
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 10 of 64 PageID #: 10
`
`
`
`workplace health and safety that OAG does not even use when evaluating New York State’s own
`
`response to the COVID-19 pandemic.
`
`A. Amazon Has Taken Above-And-Beyond Measures To Protect Associates In
`Response To COVID-19.
`
`
`Amazon Quickly And Proactively Committed Substantial Resources To Developing And
`Implementing Extensive Health And Safety Measures Based On Guidance From Experts.
`
`28.
`
`Amazon is an essential business whose continued operation during the COVID-19
`
`pandemic is critical to allowing New Yorkers and others to obtain the necessities to sustain their
`
`lives, protect their health, and adhere to stay-at-home guidelines. Amazon also provides much-
`
`needed employment to many people in its communities.
`
`29.
`
`Amazon strives to protect its associates as they continue providing a critical service
`
`to their fellow Americans. In order to do so effectively, Amazon quickly adjusted its processes
`
`and procedures, and designed and implemented numerous new processes and procedures, to
`
`respond to the novel and evolving threat of COVID-19.
`
`30.
`
`Amazon’s health and safety effort has been grounded in science and led by top
`
`health and safety professionals who oversee a 5,000-member global safety team.
`
`31.
`
`Since the onset of the COVID-19 pandemic, Amazon’s team of experts has
`
`consulted with, reached out to, and been guided by global and national groups, such as the World
`
`Health Organization (“WHO”) and the Centers for Disease Control and Prevention (“CDC”), as
`
`well as state and local health departments in order to implement Amazon’s workplace pandemic
`
`response as quickly as possible and to develop and implement best in class policies and procedures.
`
`32.
`
`In addition, Amazon has engaged over 20 of the foremost global medical experts
`
`(including pandemic response doctors, epidemiologists, and industrial hygienists) to assist in
`
`identifying and implementing appropriate measures to protect its associates, well exceeding
`
`government health guidelines and requirements.
`10
`
`
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 11 of 64 PageID #: 11
`
`
`
`33.
`
`Amazon also retained experts on industrial hygiene. Through this engagement,
`
`Amazon received advice, consultations, and feedback on multiple health and safety initiatives
`
`including temperature screening checks, mask usage, its disinfectant spraying program, and its
`
`COVID-19 testing program for all associates.
`
`34.
`
`These experts have provided ongoing guidance and information regarding
`
`transmission risk; confirmed case management; contact tracing, cleaning and disinfecting
`
`programs; temperature verification and symptom screening; and testing. They have informed
`
`Amazon’s communications to associates regarding COVID-19; completed toxicology reviews of
`
`select cleaning and disinfecting products in order to limit any risk to associates’ health posed by
`
`Amazon’s enhanced cleaning measures; and provided additional on-the-ground support as
`
`Amazon implements or adjusts health and safety measures in response to new guidelines and best
`
`practices.
`
`35.
`
`Based on guidance from these experts and authorities, as discussed further below,
`
`Amazon implemented over 150 significant process changes at its facilities in order to enhance
`
`workplace health and safety.
`
`36.
`
`Amazon proactively implemented these extensive health and safety measures
`
`against the background of ever-changing medical guidance and evolving understandings of how
`
`COVID-19 was spread.
`
`37.
`
`Amazon has invested approximately $10 billion on COVID-related initiatives
`
`aimed at keeping associates safe and deliver essential products to customers. This includes
`
`spending more than $800 million in the first half of 2020 alone on COVID-19 safety measures,
`
`including:
`
` Providing more than 100 million masks to Amazon’s associates at distribution sites;
`
`
`
`11
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 12 of 64 PageID #: 12
`
`
`
` Adding 2,298 handwashing stations;
`
` Adding more than 5,750 janitorial team members;
`
` Providing an additional 34 million gloves;
`
` Adding 48 million ounces of hand sanitizer;
`
` Adding 93 million sanitizing sprays and wipes;
`
`
`
`Installing more than 1,100 thermal cameras; and
`
` Building scalable capacity to test for coronavirus.
`
`38.
`
`In short, Amazon has been a global leader in workplace safety during this
`
`unprecedented pandemic, following the guidance and advice of public health experts and
`
`organizations early on and investing in protecting the health of its associates.
`
`Amazon Took Early Action To Increase The Frequency And Scope Of Its Cleaning Processes
`To Protect Its Associates From The Emerging Threat Of COVID-19.
`
`
`Even before the COVID-19 pandemic, Amazon had in place extensive cleaning
`
`39.
`
`procedures at its facilities to ensure a safe and sanitary workplace. In December 2019, Amazon
`
`implemented new cleaning procedures at all of its sites, including JFK8 and DBK1, pursuant to
`
`which Amazon regularly disinfected all door handles, handrails, lockers, and other “high touch”
`
`surfaces. Amazon later increased and supplemented these cleaning procedures in response to
`
`COVID-19.
`
`40.
`
`Starting on or about March 2, 2020, Amazon added almost 200 high-contact
`
`surfaces to its regular cleaning and disinfection protocols and has significantly increased the
`
`frequency at which breakroom and restroom surfaces are cleaned so that they are cleaned six to
`
`eight times per shift, which is approximately every 75 minutes. In order to implement these
`
`enhanced cleaning and disinfection protocols, Amazon also significantly increased the size of the
`
`janitorial teams that clean its sites.
`
`
`
`12
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 13 of 64 PageID #: 13
`
`
`
`41.
`
`On March 5, when the COVID-19 threat began to emerge, Amazon began
`
`conducting janitorial audits at each site to ensure that the enhanced cleaning and disinfection
`
`protocols are being properly implemented. The individual performing the audit must complete a
`
`checklist with more than 30 prompts to confirm compliance with various aspects of the enhanced
`
`cleaning protocol, and at least one janitorial audit is performed per each shift.
`
`42.
`
`Amazon’s JFK8 fulfillment center on Staten Island—the facility on which the OAG
`
`has centered its purported investigation of Amazon’s response to the COVID-19 pandemic—
`
`illustrates the extensive lengths to which Amazon has gone to ensure its facilities are clean.
`
`43.
`
`JFK8 is an 857,388 square foot facility—the size of more than 15 football fields—
`
`and more than 5,000 Amazon associates work there. In addition to the warehouse space on the
`
`ground floor, there are three additional floors within the facility where associates ship and receive
`
`hundreds of thousands of products each day. JFK8 has a total of 1,003 separate physical stations
`
`where associates work.
`
`44.
`
`At JFK8, Amazon tripled the size of its cleaning teams in order to implement these
`
`enhanced cleaning protocols and to enable the teams to cover the 200 additional points of contact
`
`that are now regularly sanitized.
`
`45.
`
`On April 6, as part of a pilot program at JFK8, Amazon also adopted disinfectant
`
`spraying (also referred to as “misting”), which is a deep cleaning practice commonly used by
`
`hospitals and airlines. This disinfectant spraying process effectively coats the entire surface of the
`
`area being treated with disinfectant, including around any curves or bends in handles, and
`
`disinfects difficult-to-clean surfaces around the facility.
`
`46.
`
`On April 27, Amazon began daily disinfectant spraying throughout the entire JFK8
`
`facility. An Amazon-approved third-party vendor applies the disinfectant spray to sanitize all
`
`
`
`13
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 14 of 64 PageID #: 14
`
`
`
`areas of the facility (including stairways, breakrooms, and all associate workstations) and all
`
`equipment (including totes, pallet jacks, and carts) every 24 hours.
`
`Amazon Implemented Routine Temperature Checks In Advance Of Guidance From The CDC
`To Quickly Identify And Address Potential Occurrences Of COVID-19.
`
`47.
`
`On March 29, Amazon began on-site temperature checks at select sites around the
`
`United States, including JFK8, in an effort to ensure that associates and support staff do not have
`
`an elevated temperature—one of the primary COVID-19 indicators that can be objectively
`
`measured—when they arrive at work. This program complemented other measures mandating
`
`that associates stay home if they are not feeling well, including signs posted at entrances directing
`
`
`
`14
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 15 of 64 PageID #: 15
`
`
`
`associates not to enter the facility and to go home if, among other things, they are experiencing
`
`symptoms like coughing or shortness of breath:
`
`Do not enter if:
`
`You are living with someone
`who has COVID-19 and have medical
`advice not to be at work.
`
`You have a temperature of 100.4°F
`(38°() or higher.
`
`Here's what to do:
`
`[}
`
`You are in a 14-day period of
`self-isolation directed by a
`healthcare provider or health official.
`
`• Do not enter. Move away from the entrance area
`and go home.
`
`You have travelled to another
`country in the last 14 days.
`
`• Contact the ERC, or your HR team, DSP, or
`support team to notify them of the situation.
`
`You currently have a cough,
`or shortness of breath.
`
`If you need medical assistance, let your medical
`provider know you have or may have COVID-19
`before you arrive.
`
`
`Amazon subsequently expanded this temperature screening program to its entire
`
`48.
`
`U.S. operations network, including DBK1, and Amazon began checking the temperatures of
`
`hundreds of thousands of individuals each day. By April 30, 2020, Amazon had purchased more
`
`than 1,000 thermal cameras and 31,000 thermometers to conduct these temperature checks.
`
`49.
`
`Under the temperature screening program, anyone registering a temperature over
`
`100.4 ºF (or lower where required by state or local authorities) is directed to return home and only
`
`come back to work after they have gone three days without a fever, in line with CDC
`
`recommendations.
`
`
`
`15
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 16 of 64 PageID #: 16
`
`
`
`50.
`
`Amazon established this program more than a week before the CDC issued
`
`guidance recommending temperature checks as one condition for permitting critical infrastructure
`
`workers to continue work following a potential exposure to COVID-19. Even then, the CDC did
`
`not go so far as to recommend checks for all individuals regardless of known exposure.2 Indeed,
`
`the CDC still states that “[s]creening employees is an optional strategy that employers may use.”3
`
`Similarly, although New York requires that employers “screen” employees, “[w]orkplaces are not
`
`required to check employee temperatures.”4 This is one of many examples of Amazon’s COVID-
`
`19 safety measures that go “above and beyond” any government requirements or guidance.
`
`Amazon Modified Its Leave Policies In Advance Of Changes To New York State Law In Order
`To Allow Associates To Focus On Their Health And Families.
`
`
`On March 6, 2020, Amazon temporarily modified its unpaid time off policy to
`
`51.
`
`provide associates with unlimited unpaid time off to ease pandemic-related burdens such as school
`
`closures, short absences, or other exigencies. While Amazon has now returned to its ordinary
`
`unpaid time off program, it continues to offer many other forms of paid and unpaid leave for
`
`associates.
`
`52.
`
`On March 11, Amazon also established a COVID-19 paid leave program through
`
`which associates placed into quarantine or diagnosed with COVID-19 receive up to two weeks of
`
`
`2 CDC, Interim Guidance for Implementing Safety Practices for Critical Infrastructure Workers
`Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19 (Apr. 8, 2020),
`https://www.cdc.gov/coronavirus/2019-ncov/downloads/critical-workers-implementing-safety-
`practices.pdf.
`3 CDC, FAQs for Workplaces & Businesses (Should we be screening employees for COVID-19
`symptoms (such as temperature checks?)) (Feb. 1, 2021), https://www.cdc.gov/coronavirus/2019-
`ncov/community/general-business-faq.html.
`4 NYC311, Coronavirus (COVD-19) Worker Symptoms Screening (Temperature Checks),
`https://portal.311.nyc.gov/article/?kanumber=KA-03314; see also N.Y. Exec. Order 202.38
`(“[C]ommercial building owners . . . shall have the discretion to require individuals to undergo
`temperature checks prior to being allowed admittance.”).
`
`
`
`16
`
`

`

`Case 1:21-cv-00767 Document 1 Filed 02/12/21 Page 17 of 64 PageID #: 17
`
`
`
`additional paid time off so they can focus on their health and not lost income. This COVID-related
`
`paid time off does not count against the associates’ paid and unpaid time-off accruals.
`
`53.
`
`Amazon asks these associates to stay away from their work site, to watch for
`
`symptoms, and to seek medical attention if they experience any symptoms. Members of Amazon’s
`
`Human Resources Department will check on the associate’s wellness during this quarantine period.
`
`54.
`
`Amazon established this program seven days before New York Governor Andrew
`
`Cuomo signed emergency legislation requiring employers with more than 100 employees to
`
`provide paid sick leave to employees who need to take leave because they are under a mandatory
`
`or precautionary order of quarantine or isolation due to COVID-19.5
`
`Amazon Developed A Contact Tracing Process That Goes Above And Beyond Regulators’
`Expectations Of Employers.
`
`55.
`
`Amazon began contact tracing in February 2020, and, on March 20, Amazon
`
`formalized its contact tracing process.
`
`56.
`
`Under its current policy, for each confirmed or presumptive case that meets certain
`
`criteria, Amazon uses interviews and/or video review to identify who at Amazon may have had
`
`“close contact” with the diagnosed individual. Associates iden