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Public Nuisance: A New Theory of Liability for Employee COVID Claims


Workers at McDonald’s and Amazon are invoking the doctrine of public nuisance to sue their employers for what they allege are unsafe working conditions. The employees claim that their employers did not take adequate precautions to protect them, and ultimately the public with which they interact, from the risk of COVID-19 infection. This legal theory is not often used in the context of the employee/employer relationship because other mechanisms already exist to protect workers, such as the Occupational Safety and Health Administration (“OSHA”). Furthermore, worker’s compensation is generally an employee’s sole remedy for collecting damages from her employer for workplace illnesses or injuries.

In fact, a federal case brought by employees of a Smithfield Foods Inc. meat processing plant under a public nuisance theory was dismissed last month in the United States District Court for the Western District of Missouri. The plaintiff sought a preliminary injunction forcing Smithfield to comply with, at a minimum, the CDC’s guidelines pertaining to the prevention of COVID-19 infection. When dismissing the case, Judge Kays cited OSHA’s primary jurisdiction over workplace safety. He also noted “the significant steps Smithfield ha[d] taken to reduce the risk of a COVID-19 outbreak at the Plant.”

The McDonald’s workers, however, survived a motion to dismiss this week in Illinois state court. with a similar public nuisance argument. Judge Reilly sitting in Cook County Circuit Court rejected McDonald's arguments that government health agencies had primary jurisdiction to hear the claims, holding that “[p]rimary jurisdiction is not an affirmative matter that defeats the [employees'] claims”. And added that the “dispute in the workers' case concerns whether McDonald's has followed regulations already distributed in response to the health crisis, and that is a "factual dispute that involves credibility determinations which the court is very well suited to handle.” A hearing on the preliminary injunction will be held later this week.

A lawsuit against Amazon which was filed Wednesday in the United States District Court for the Eastern District of New York also seeks an injunction requiring Amazon to make better efforts to comply with guidance for protecting workers and their families from the spread of COVID-19 infection. The complaint claims that Amazon has the technology to provide contact tracing for workers who report contracting the virus but does not utilize it. We expect more of these cases to be brought against employers as certain claims are permitted to proceed. Whether these creative theories result in employer liability or not, employers must continue to stay on top of the ever-evolving guidance being issued by various regulatory agencies. They should consider documenting their efforts to protect their workers from exposure to COVID-19 because it appears that these lawsuits, if they survive motions to dismiss, will be focused on a factual inquiry of whether the employers are in fact following regulations and protocols during the relevant time periods.

HNRK’s employment law team is here to help employers navigate these challenges.


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