In Short

The Situation: A rising number of lawsuits by former and current employees claim that workplaces not complying with COVID-19 health guidelines are public nuisances requiring abatement.

The Result: Courts are split on whether non-compliant workplaces warrant a public nuisance finding and remedy, while some courts have avoided the question by deferring jurisdiction to administrative agencies, like OSHA.

Looking Ahead: Implementing and enforcing workplace policies and practices that meet evolving federal, state, and local health guidelines can help avoid public nuisance claims. Employers facing public nuisance claims may have various defenses available.

COVID-19 stay-at-home orders have not shut down public nuisance litigation against employers that allegedly fail to comply with public health guidelines. Public nuisance cases have been filed in at least nine states against a variety of businesses, including a distribution center, food processing plant, retail store, and fitness gym.

A common law public nuisance is defined as "an unreasonable interference with a right common to the general public." See, e.g., Restatement (Second) of Torts § 821B. Some trial courts have accepted that the public health imperative to stop the spread of a contagious, dangerous disease satisfies the public right requirement. However, precedent generally would not deem a lawful business that the government permits to operate during the pandemic and that complies with applicable health regulations to be an unreasonable interference with a public right. Although public nuisance decisions considering COVID-19 risks in the workplace are scarce, several significant factors impacting the success of those claims are emerging.

The type of plaintiff may give rise to a unique defense arising under public nuisance law. Unlike a government plaintiff, private individuals or organizations typically need to show a special injury different in kind (not simply degree) from that incurred by the public to have standing. A New York federal trial court held that an employee in a large distribution center had the same risk of exposure to COVID-19 as the public at large, even if the plaintiff's risk differed in degree. Palmer v. Amazon, 2020 WL 6388599 (E.D.N.Y. 2020).

The type of plaintiff also may bring into play an arbitration agreement. A California trial court found that an arbitration agreement precluded an employee's public nuisance claim against her employer. Esco v. Dollar Tree Stores Inc., 2020 WL 8410026 (Cal. Super. 2020).

A state public nuisance statute may loosen the already vague elements of a common law public nuisance claim. For example, California's civil code broadly defines a public nuisance as "anything injurious to health" which "affects at the same time an entire community or neighborhood, or any considerable number of persons…." Cal. Civ. Code §§ 3479-80.

It is important to analyze all applicable federal, state, and local laws, regulations, orders, and evolving COVID-19 public health guidance when defending public nuisance claims. Laws and regulations may provide defenses based on preemption, abstention, or the need to exhaust administrative remedies. Citing their lack of expertise in the intricacies of workplace health and safety, some federal courts have invoked the primary-jurisdiction doctrine to defer, at least in the first instance, to regulatory agencies, such as OSHA, the determination of how to address complex health and safety issues facing essential businesses. Palmer .v Amazon.com, Inc., 2020 WL 6388599 (E.D.N.Y. 2020); In Rural Community Workers Alliance v. Smithfield Foods, Inc., 459 F.Supp.3d 1228 (W.D. Mo. 2020); but see St. Louis County v. House of Pain Gym Services, 2020 WL 2615746 (E.D. Mo. 2020). Deference can depend on whether the plaintiff has filed an administrative complaint, whether the agency will likely exercise authority, how long it will take the agency to act, and whether the agency can provide a sufficient remedy. In Smithfield Foods, the court also was concerned about the requested injunction's effect on the food processing plant's efficiency and productivity.

Finally, the standards for obtaining injunctive relief may present obstacles for a public nuisance plaintiff. For example, if the plaintiff has regulatory remedies, then the employer can argue that there will be no irreparable harm in the absence of an injunction. The employer's compliance with applicable health regulations and guidelines also affects the claim's likelihood of success. One employer avoided preliminary injunctive relief by improving its policies and practices after a lawsuit was filed. Further, a plaintiff's request for injunctive relief may be too vague, such as a general request for compliance with COVID-19 guidelines. And when balancing hardships, courts will consider whether the plaintiff and other employees have actual injuries or merely a risk of injury, whether the business is essential, what remedial steps the employer has taken, and the extent to which an injunction will impact business operations.

In sum, the increasing use of public nuisance claims raises the ante in litigation alleging workplace risks from COVID-19. However, depending on the applicable state law and the facts, various defenses are available to employers. Compliance with federal, state, and local health guidelines may not guarantee a business will avoid a public nuisance lawsuit, but implementing and enforcing compliant workplace policies and practices can help provide a strong defense and mitigate the need for judicial remedies.

Three Key Takeaways

  1. Employers may face public nuisance lawsuits based on an alleged unreasonable risk of COVID-19 to their employees or those who regularly come into contact with their employees.
  2. Employers have many defenses against such public nuisance claims, including the primary-jurisdiction doctrine and compliance with federal, state, and local laws, regulations, orders, and public health guidelines concerning COVID-19.
  3. To help reduce the risk of public nuisance litigation, businesses can stay informed of evolving federal, state, and local laws, regulations, orders, and administrative agency guidelines related to COVID-19, and modify their workplace policies and practices to mitigate the spread of COVID-19 in the workplace.