Bloomberg Law
June 4, 2020, 10:01 AMUpdated: June 4, 2020, 12:45 PM

McDonald’s Case Tests Nuisance Theory for Job Virus Safety (1)

Robert Iafolla
Robert Iafolla

A lawsuit against McDonald’s Corp. will be an early test of whether workers can use a longstanding legal doctrine against public nuisances to force employers to keep them safe from the coronavirus.

Public nuisance claims, which originated hundreds of years ago in land-use disputes to protect society from harm, are common in modern litigation involving environmental pollution, lead paint, and the opioid crisis. Although seldom raised in the employment sphere, the legal theory has been applied in the public health context to combat contagious diseases and could provide a way for courts to police employers’ Covid-19 safety efforts, law professors said.

Workers at McDonald’s locations in Chicago are arguing that the fast food chain’s inadequate Covid-19 safeguards constitute a public nuisance that will further spread the disease. The workers, joined in the lawsuit by their family members, seek a court order requiring McDonald’s to comply with an Illinois executive order and federal guidance on safety protocols, such as supplying hand sanitizer and requiring face coverings inside restaurants. Inc. also was hit with a worker public nuisance lawsuit Wednesday over allegedly insufficient coronavirus protocols. One of the three workers who sued the online retail giant claims that she contracted the virus at its Staten Island distribution center. That worker’s cousin, whom she lived with, later died after experiencing Covid-19 symptoms, according to the lawsuit.

But workers face several significant obstacles to winning virus-related public nuisance claims against employers, including OSHA and other regulatory agencies with authority over worker safety or public health, and restrictions on workers’ suing employers over occupational illnesses, professors said.

The McDonald’s workers notched an early win on Wednesday after an Illinois state judge rejected the company’s bid to dismiss the lawsuit. The court will hear argument Thursday on the workers’ request for a preliminary injunction to temporarily require four restaurants to institute protective protocols.

McDonald’s disputes the workers’ allegations of insufficient safety measures, saying it’s updated nearly 50 protocols and issued a 59-page guide on national standards for all of its restaurants.

“The safety protocols in question in this lawsuit are already in place in Chicago and our 14,000 restaurants around the country,” McDonald’s told Bloomberg Law in a statement.

An attorney for the McDonald’s workers declined to comment.

State v. Federal Court

The McDonald’s public nuisance lawsuit follows a similar suit against a Smithfield Foods Inc. meat processing plant in Missouri, which was dismissed last month. But one difference between the cases could be crucial: the Smithfield lawsuit was heard in federal court and the McDonald’s suit is in state court.

State courts are typically better venues for plaintiffs to bring injury or “tort” claims, which are a matter of state law. Federal courts are less comfortable and familiar with state law, legal scholars said. This is particularly true when plaintiffs are bringing novel legal theories, they said.

“Traditionally, federal courts have been less willing to innovate because they’re really just guessing about state law,” said Tom Baker, a University of Pennsylvania law professor who teaches torts. “Short of certifying a question to a state Supreme Court, I don’t see a federal district court doing anything highly expansive or restrictive.”

In some cases, federal courts are more likely than state courts to rule that the tort claims were preempted by federal regulations and to ask for agency input, said Catherine Sharkey, a New York University law professor who’s written extensively about torts and preemption. That was true in drug labeling lawsuits against pharmaceutical manufacturers, she said.

Agency Authority

The Smithfield case was dismissed on similar grounds, with a federal judge citing the Occupational Safety and Health Administration’s authority, or “primary jurisdiction,” over workplace safety. Federal law allows the Labor Department to ask a court to “restrain” dangerous workplace conditions that could cause immediate harm, and workers can sue the department to compel it to file such a petition, the judge noted.

However, Cook County Circuit Court Judge Eve Reilly turned aside McDonald’s argument that she should defer to local, state, or federal agencies. Reilly cited Illinois precedent saying that public nuisance claims are a good fit for injunctions and courts shouldn’t abdicate their roles when such a nuisance could harm the general public.

Dismissing the Smithfield lawsuit based on OSHA’s primary jurisdiction was unusual, given that the agency has refused to protect meat processing workers from the coronavirus with an emergency regulation, said James Brudney, a labor and employment law professor at Fordham University.

The AFL-CIO filed a lawsuit against OSHA last month seeking an emergency virus standard.

The Smithfield workers who sued the company are waiting on the results of an OSHA investigation of the plant before determining their next steps, said Karla Gilbride, a Public Justice attorney on the legal teams for both the Smithfield and Amazon workers. Nobody has ever sued OSHA to force it to petition a court to restrain immediate hazards, she said.

The investigation remains open and no information will be available about the probe until it’s completed, a Labor Department spokesman said.

Smithfield said in a statement that the public nuisance lawsuit was “frivolous.” The company said it’s focused on employee health and safety in response to the Covid-19 crisis, which includes providing masks and face shields, checking temperatures, and installing physical barriers on their production lines.

Workers’ Compensation, Damages

Another hurdle to workers’ public nuisance claims is the workers’ compensation system and its role as the exclusive route for workers to seek payment for occupational injuries and illnesses. Workers can get benefits regardless of fault and employers can’t be separately sued unless they allegedly committed serious misconduct.

Workers seeking damages under nuisance claims would be blocked by the workers’ compensation bar, said Michael Duff, a University of Wyoming law professor who’s written extensively on workers’ compensation. But those pursuing injunctions under a nuisance theory could succeed depending on the state, he said.

“We just don’t have a lot of law on the conflict between nuisance and workers’ compensation,” Duff said via email.

Although the lawsuit against McDonald’s only requests an injunction, some of the case’s features show that the damages issue could be complicated in similar nuisance claims in the future, law professors said.

The plaintiffs include family members of McDonald’s workers who could be harmed by coronavirus exposure that started in the workplace, so they likely wouldn’t be blocked by the workers’ compensation bar. In addition, some of the workers hail from franchise restaurants, meaning that McDonald’s isn’t their direct employer and presumably wouldn’t be protected from claims for damages.

Plaintiffs’ attorneys are trying to use public nuisance claims for injunctions to pave the way for damages lawsuits down the line, said Roger Gibboni, director of legal affairs at the U.S. Chamber Institute for Legal Reform.

But an attorney for the Smithfield workers said that’s not what drove their lawsuit in Missouri federal court.

“The workers just want to be safe,” Gilbride said. “It’s not a conspiracy.”

(Updated with details on a newly filed Amazon lawsuit in the fourth paragraph.)

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Jay-Anne B. Casuga at; John Lauinger at