August 11, 2020 

Public Nuisance Doctrine and Inadequate COVID-19 Precautions Present Litigation Risk for Employers
by Patrick Creagh and April Walkup




As a supplement to its Guidance on Preparing Workplaces for COVID-191 issued in March 2020, the Occupational Safety and Health Administration (“OSHA”) recently issued Guidance on Returning to Work, which focuses “on the need for employers to develop and implement strategies for basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training.”2  While not creating additional binding regulations that are enforceable against employers,3  these OSHA resources aid in identifying areas of risk in the workplace and determining where appropriate control measures should be implemented. The Centers for Disease Control and Prevention (“CDC”) has issued similar guidance and considerations.4 

Citing to these guidelines, as well as industry-specific guidance, state agency guidelines, and executive orders, employees in recent months have filed lawsuits against their employers alleging that they are not being adequately protected in the workplace from COVID-19. Early court decisions indicated that such lawsuits would be deferred to the jurisdiction of the governmental agencies that authored these cited guidelines.

In a recent Alaska case, the Alaska State Employees Association (“ASEA”) brought suit against the State of Alaska, alleging that the State was not meeting its legal responsibility to provide workers with a safe workplace during a pandemic. ASEA immediately sought a temporary restraining order after filing its complaint. The court denied ASEA’s motion under a separation of powers rationale without ruling on the overall lawsuit. Judge Thomas Matthews wrote that “ASEA is inviting this Court to substitute its judgment for the expertise of State officials who are charged with managing several thousand workers.”5 

In a federal Missouri lawsuit against Smithfield Foods Inc., the world’s largest pork processor, the Rural Community Workers Alliance and an unnamed individual worker at a Smithfield plant in Milan, Missouri alleged that Smithfield created a "public nuisance" by providing inadequate protective equipment to workers at the plant, refusing to give them time to wash their hands, and discouraging workers who are ill from taking sick leave. Judge Greg Kays from the District Court for the Western District of Missouri granted Smithfield’s motion to dismiss the case under the primary-jurisdiction doctrine. The Court reasoned that due to OSHA’s expertise and experience with workplace regulation, it was better positioned to make the determination of whether the meat processing plant was adequately protecting workers.6  

A recent Cook County, Illinois ruling however may have opened the door for more lawsuits alleging inadequate pandemic workplace precautions to press forward through litigation. Under the same public nuisance doctrine unsuccessfully utilized by the plaintiffs in Smithfield Foods Inc., workers at McDonald’s restaurant locations in Chicago filed suit against McDonald’s Corporation, McDonald’s franchise owners, and a McDonald’s subsidiary seeking a court order to require McDonald’s restaurants to comply with Illinois Executive Orders, Illinois Department of Public Health guidelines, and Illinois Department of Commerce and Economic Opportunity guidelines for limiting the spread of COVID-19.

Judge Eve Reilly from the Cook County Circuit Court, Chancery Division denied McDonald’s motion to dismiss the complaint, which argued that federal, state, and local regulatory agencies have primary jurisdiction over worker safety and public health. In denying the motion, Judge Reilly reasoned that even if the plaintiffs have a remedy with administrative bodies, they were asking the court to resolve a factual dispute involving credibility determinations, not create safety regulations. This is precisely a function of the court system, and therefore the plaintiffs’ public nuisance claims could proceed.

Public nuisance claims are not commonly brought by employees against their employers. Worker’s compensation is generally an employee’s sole remedy for collecting damages related to workplace injury, and employment protections are codified within the Occupational Safety and Health Act. Moreover, in addition to the primary-jurisdiction holding dismissing the plaintiffs’ public nuisance claim in Smithfield Foods Inc., Judge Kays also held that the plaintiffs’ motion for a preliminary injunction was denied because the plaintiffs did not meet their burden showing an irreparable harm. Showing that the employees risked exposure if they continued to work was insufficient, as no one can guarantee health in the middle of a global pandemic. The court instead reasoned that it was unable to conclude plaintiffs faced an inevitable harm if their motion was denied because Smithfield had already taken significant measures to protects its workers from COVID-19.7  This appeared to be a roadblock for future employee plaintiffs seeking preliminary injunctions against employers under the doctrine of public nuisance.

The opposite ruling was reached in the McDonald’s litigation in Cook County, however. Judge Reilly found it “difficult to imagine a harm more irreparable than serious illness or death caused by this highly contagious disease.”8  Therefore, the mere possibility of being infected by COVID-19 was deemed to be an irreparable harm. In addition, after conducting a thorough factual analysis of the policies and implementations at each McDonald’s location at issue, Judge Reilly ruled that the plaintiffs showed a likelihood of success on the merits for multiple public nuisance claims. As a result of these holdings, certain defendants were enjoined from training employees on social distancing in a manner inconsistent with the Governor’s Executive Order, and mask policies compliant with the Governor’s Executive Order needed to be enforced.

It remains to be seen whether this Cook County ruling will pave the way for similar public nuisance lawsuits to be filed by employees uncomfortable with their employers’ COVID-19 precautions or even whether such actions will continue to be deemed within the court’s jurisdiction. In this state of uncertainty, businesses are best off limiting their potential exposure to such claims by making good faith efforts to incorporate measures to protect employees. Whether courts determine that disputes over regulation compliance are within their jurisdiction or should be left to state and federal administrative agencies or regulatory bodies, employers should adhere to the OSHA and CDC guidelines referenced herein. Moreover, it is important for employers to regularly review their state, city and county’s latest executive orders and administrative agencies’ guidelines while communicating any adopted policies and procedures to all employees to help ensure their enforcement throughout the organization.



Occupational Safety and Health Administration, Guidance on Preparing Workplaces for COVID-19, https://www.osha.gov/Publications/OSHA3990.pdf (last visited August 9, 2020).
2 Occupational Safety and Health Administration, Guidance on Returning to Work, https://www.osha.gov/Publications/OSHA4045.pdf (last visited August 9, 2020).
3 For a list of requirements which may be applicable to employers based on type or setting of work, as well as OSHA-approved state-specific plans, see https://www.osha.gov/SLTC/covid-19/standards.html.
Centers for Disease Control and Prevention, Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), May 2020, https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html (last visited August 9, 2020); Centers for Disease Control and Prevention, Returning to Work, https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/returning-to-work.html (last visited August 9, 2020).
5 Order Regarding ASEA’S Mot. for T.R.O. and Prelim. Inj., p. 17, Alaska State Employees Association, Local 52 v. State of Alaska, Case No. 3AN-20-05652CI (Mar. 31, 2020), https://public.courts.alaska.gov/web/media/docs/asea-local52/order1.pdf.
6 Order Granting Defs.’ Mot. to Dismiss, Rural Community Workers Alliance and Jane Doe v. Smithfield Foods, Inc., pp. 14–16, No. 5:20-CV-06063-DGK (W.D. Mo. May 5, 2020), https://www.govinfo.gov/content/pkg/USCOURTS-mowd-5_20-cv-06063/pdf/USCOURTS-mowd-5_20-cv-06063-0.pdf.
7 Id. at 19.
8 Order, Massey v. McDonald’s Corporation, et al., p. 32, Case No. 20 CH 4247 (June 24, 2020), https://images.law.com/contrib/content/uploads/documents/292/69750/McDonalds-ruling-6.24.20.pdf.