By Vin Gurrieri

Law360 (June 9, 2020, 9:50 PM EDT ) McDonald's and workers who say the fast food giant didn't do enough to protect them or their family members from COVID-19 will square off in Illinois state court Wednesday, in a case that could set the stage for a rise in lawsuits alleging that unsafe workplaces amount to a "public nuisance."

McDonald's along with fellow corporate titan Amazon, which is facing a public nuisance suit of its own in New York federal court, are among the companies that have been sued in recent weeks by workers and their family members, who claim that lax workplace safety protocols put them in danger of contracting COVID-19.

Public nuisance, a cause of action with roots in British common law, has traditionally been used in cases involving environmental and property use disputes and has expanded over the past two decades to product liability cases involving tobacco products and litigation surrounding the opioid crisis.

Courtney E. Ward-Reichard of Nilan Johnson Lewis PA, whose practice includes employment class actions and mass tort litigation, said the legal theory may soon find itself in more employment cases given that the core point of contention in cases like the ones against McDonald's and Amazon are issues relating to an employers' premises.

"I do think that ... we're going to see public nuisance be added to any complaints that are filed either on behalf of employees or customers of businesses open to the public," Ward-Reichard said. "But also, I think it essentially opens the floodgates to really any complaint about a business or its premises."

"We're really sort of at an interesting precipice here in that as these cases are litigated in the COVID-19 context," she added. "It's going to be a very important defense by the defendants in these cases that if you open the doors to saying 'something having to do with COVID-19 or our COVID-19 preparations are inadequate and thus a public nuisance,' you really open the door for all kinds of litigation."

Public Nuisance in the Spotlight

On Wednesday, Cook County Circuit Judge Eve Reilly will hold a hearing regarding workers' request for a preliminary injunction against McDonald's to force the company and certain franchisees to do more to safeguard employees and their families.

The judge recently rejected McDonald's Corp.'s argument that governmental agencies, including the state and local departments of health, had primary jurisdiction to hear claims that McDonald's allegedly subpar response to the coronavirus pandemic has endangered its workers and constitutes a public nuisance. Fight for $15 and the Service Employees International Union are backing the suit.

Amazon is fighting off similar claims by workers who sued earlier this month alleging that unsafe working conditions at its fulfillment center in Staten Island led to the death and injury of warehouse workers and their families. The plaintiffs in that case are largely not seeking damages for past harm, but rather want only an order requiring Amazon to comply with public health guidance to prevent more harm in the future.

Those cases came on the heels of a Missouri federal judge dismissing similar allegations against Smithfield Foods Inc. on the grounds that regulators from the U.S. Occupational Safety and Health Administration or the U.S. Health and Human Services Department should have primary jurisdiction over whether the employer is complying with workplace safety rules and guidance.

Michael Oswalt, a law professor at the Northern Illinois University College of Law, said he believes the public nuisance claim is a "challenging" one, but added that Fight for $15 has proven adept at taking on challenging issues.

For nearly a decade, the movement "has made demands many thought were too ambitious and then achieved them," he said, pointing to things like $15-per-hour wages for workers and fair scheduling practices.

"So, it's not surprising that McDonald's failure to provide safe workplaces caused Fight for $15 to sue on behalf of workers, their families, and the greater public," Oswalt said. "A public nuisance claim is really a perfect fit for the movement."

But Angelo Amador, senior vice president of legal advocacy and regulatory counsel at the National Restaurant Association, said it's "troublesome" that the plaintiffs in the McDonald's case "complain about the last three months, but not once have [they] brought a single complaint against the four restaurants involved with any federal, state, or local health inspection authority — choosing instead to go straight to court."

The association's legal advocacy arm, which filed an amicus brief in the McDonald's case, has argued that probing potential worker safety and public health issues is within the purview the Occupational Safety and Health Administration and other federal and state regulators, not the courts.

"Clearly, if a state court judge were to ignore the fact that a plaintiff never filed a complaint with the appropriate agency and allow private plaintiffs to hijack a public health department's role, we could expect similar cases being filed," Amador said. "Such a result does not provide any benefits whatsoever to employees, the public, or restaurants, but risks widespread harm, if nothing else through the cost of increased litigation as well as unharmonized standards and uneven enforcement. Thus, we continue to emphasize that the responsible health authorities should be left to do their work."

The McDonald's plaintiffs noted in their May 19 complaint that workers at one of the four restaurants at issue in the lawsuit suit had filed a complaint with OSHA, but that the agency had yet to do an on-site inspection.

Exclusive Remedy Rule Presents a Hurdle

But whether suits like the ones against McDonald's and Amazon are successful may hinge on a plaintiffs overcoming a provision of workers' compensation law known as the exclusive remedy rule.

When workers suffer job-related injuries, the only remedy for them or their families is workers' compensation, and they are generally barred from suing their employers for damages under the exclusive remedy rule, according to Michael Duff, a professor at the University of Wyoming College of Law who specializes in workers' compensation.  

But the suits against McDonald's, Amazon and Smithfield largely don't seek money damages and instead only seek injunctions that force the companies to comply with recommendations and best practices from public health officials regarding COVID-19.

"The argument here that plaintiffs would make is that public nuisance is really outside of [the workers' comp] context because what we're talking about is the condition of the property or the condition of the workplace," Ward-Reichard said. "In essence, the public nuisance claim is trying to get that employer to abate the nuisance, to eliminate the nuisance in the workplace, obviously something very costly."

Duff said there is almost no case law available in which employees have tried to sue under a public nuisance theory only to get an injunction against their employer because the fact-pattern that leads to such a suit hardly ever occurs. That could ultimately give courts fits as they try to determine whether workers' compensation should be the only remedy available to workers like the ones in the McDonald's and Amazon cases. But Duff said he believes employees "will have a very difficult time prevailing" in those cases when they are all said and done.

"I still think that the nuisance claims are likely to be barred by the exclusive remedy rule," Duff said. "And I think the reason they'll be barred is that even if all you're thinking of is an injunction — you don't want money, you just want [the employer] to stop — normally you can't get an injunction in public nuisance unless you can also get damages in public nuisance."

However, Duff noted that family members of workers who are involved in those cases may stand a better chance of prevailing on a public nuisance claim.

"If they're being made sick by employees carrying the illness back to them, there are theories that they have under tort law that may ultimately cause the employer to be liable and therefore may justify the injunction," Duff said.

Multiple Defenses on the Table

Should the public nuisance cases against McDonald's and Amazon advance beyond their initial stages, Ward-Reichard said there are plenty of avenues employers can go down to fend off the claims. The strongest defense might be rooted in public policy considerations regarding whether agencies like OSHA or processes like workers' comp were intended to protect workers and not the public nuisance doctrine, she said.

"That's the reason why public nuisance has been rejected in a number of product liability suits — concerns that you essentially just throw away tort law and rewrite it with public nuisance. The same issue exists here," she said. "It feels novel to be dealing with COVID-19, but really the issues that these employees are complaining about are no different ... from any complaint you might have about an unsafe workplace that has nothing to do with COVID-19" where the solution is to go through OSHA.

"This could really open up a huge amount of litigation for employers and business owners of all kinds, so I think that's a primary argument," Ward-Reichard said.

Duff, however, said that the McDonald's case is an example of how plaintiffs might try to get around that potential argument, saying that state judges may be less likely to find that federal agencies have primary jurisdiction over workplace safety complaints that arise under state law. 

"In fact, [Judge Reilly] basically denied the employers' motion to dismiss which was in part based on that argument," Duff said. "So, I think that when the public nuisance suit is filed in state court, it less likely ... that a state court judge is going to say, 'I'm not going to get involved because that's OSHA's area.'"

Besides potential deference to agencies, Ward-Reichard said employers could argue that they have already taken significant precautions to combat the spread of COVID-19 such that they can't be found to have violated the public's right to health. Moreover, they could argue that plaintiffs can't prove how or where they were infected with COVID-19 and that employers have no control over COVID-19 to be able to entirely eliminate the threat from the workplace, she said.

"Here, the defendants certainly do have the ability to abate the nuisance in some senses," Ward-Reichard said. "They can [take] protective measures, they can have rules that require employees to stay further apart. They can reduce the risk, but ultimately those employers don't have any more control over the virus than any of us do. I think that's an argument that would be interesting in this context."

--Additional reporting by Lauraann Wood and Lauren Berg. Editing by Breda Lund.

--Clarification: This story has been updated to make clear that workers at one of the four McDonald's locations at issue in the Illinois suit had filed a complaint with OSHA prior to the case being filed.

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