The National Sea Grant Law Center


  • Public Nuisance Lawsuits Against Employers Over COVID-19: What You Need to Know

  • June 29th, 2020 — by Gabi Jackson — Category: COVID-19 Torts

  • As businesses re-open in the midst of COVID-19, workers exposed to coronavirus may attempt to hold employers liable for their sickness. In fact, employees of McDonald’s, Amazon, and Smithfield Foods have already filed suits against these companies under a common law cause of action for public nuisance. Although public nuisance is a common lawsuit in the realm of environmental litigation, its use in the employment context is rare since federal, state, and regulatory bodies typically have purview over workers’ claims. As employees bring these claims, it is unclear whether courts will allow the claims or plaintiffs must seek recourse another way.

    Two cases involving McDonald’s franchises have been filed. In May, five workers and some of their family members sued McDonald’s Corp. and several Chicago-area franchisees alleging that the working conditions amounted to a public nuisance. (Taynarvis Massey et al. v. McDonald's Corp. et al., No. 2020-CH-04247 (Ill. Cir. Ct. 2020)). The employees claimed that McDonald’s failed to take steps to protect them from COVID-19: they had no adequate protective equipment, hand sanitizer, or safety training—a violation of the Centers for Disease Control (CDC) guidelines. On June 3rd, an Illinois judge, denied McDonald’s motion to dismiss, rejecting the argument that regulatory agencies have primary jurisdiction. The judge stated that it would not dismiss the claim, since public nuisance is under state courts’ purview and an injunction could provide a remedy for the plaintiffs. In California, employees at an Oakland McDonald’s filed a similar complaint. The judge recently issued a temporary order requiring the location to implement additional safety measures while the case is pending. (Hernandez v. VES McDonald’s, Cal. Super. Ct., No. RG20064825 (June 22, 2020)). However, every judge will not reach this conclusion and the trajectory of these cases may vary from federal court to individual state courts.

    For instance, workers at a Smithfield meat processing plant in Missouri sued their employer in federal court for similar claims related to COVID-19 safety. Smithfield filed a motion to dismiss and the judge granted the motion. (Rural Community Workers Alliance v. Smithfield Foods Inc., No. 5:20-CV-06063 (W.D. Mo. 2020)). Smithfield’s motion argued that because of the primary-jurisdiction doctrine, the Occupational Safety and Health Administration (OSHA) has jurisdiction over the workers’ claims in this case. The primary jurisdiction doctrine allows a district court to refer claims to an administrative agency that has concurrent jurisdiction over an issue. The judge ruled in favor of Smithfield, saying that OSHA has primary jurisdiction over the claims, a deviation from the Illinois ruling. Here, the judge concluded that the issue is within the special competence of OSHA. Once at OSHA, the agency would investigate the complaint.

    In a New York state court on June 3, 2020, warehouse workers at Amazon filed a public nuisance lawsuit for the company’s insufficient coronavirus protocols. (Derrick Palmer et al. v. Inc. et al., No. 1:20-CV-02468 (E.D.N.Y. 2020)). Employees say Amazon did not follow CDC guidelines and are seeking an injunction as a result. Workers claim Amazon punished those who spoke about health concerns, failed to promptly pay employees who went on sick leave, and prevented workers from engaging in basic hygiene. Amazon is currently reviewing the complaint but is adamant that adequate strides were made by spending $800 million on safety gear, and implementing 150 new coronavirus protocols. If Amazon can show a good faith effort, this may aid in avoiding liability.

    The rarity of employees filing public nuisance lawsuits makes it unclear how certain courts will ultimately rule on the issue. One barrier that legal experts have noted is the exclusive remedy rule, which states that employees have no common law right to recover damages from an employer as a result of injury while working, except as provided in the applicable statute. However, even if judges decide they do have jurisdiction over these public nuisance claims, plaintiffs will have difficulty proving an employer’s health practices resulted in a public nuisance. COVID-19 is highly contagious and symptoms may not appear for several weeks, making it difficult to discover the origins of an infection or to conduct accurate contact tracing. In addition, employers’ good faith efforts to to take measures to protect employees will likely be given considerable weight by courts. To manage the risks, businesses should follow procedures outlined by the CDC, OSHA, and individual states. Adhering to these measures will be an important defense to employees’ public nuisance lawsuits based on employer COVID-19 liability.

  • Gabi Jackson
    NSGLC COVID-19 Rapid Response Research Associate

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