The Covid-19 outbreak at Smithfield Foods’ Milan, Missouri, plant the focus of a worker safety lawsuit that garnered national attention last year resulted in two worker deaths and was worse than previously thought, according to newly obtained federal documents.
Early on in the pandemic, the Sullivan County Health Department told local news station KTVO that 14 workers had tested positive. And in late May 2020, the local hospital director told the St. Louis Post-Dispatch that 35 cases were tied to the plant. Since then, the health department and the company have declined to provide figures that would show the outbreak’s scope.
But the Occupational Safety and Health Administration found the total number of cases was likely more than double what has been previously reported. By the end of May 2020, at least 77 workers were presumed to be positive for the virus, and more than 300 were either suspected to have the virus or had been in close contact with a positive case.
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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 fit
Seyfarth Synopsis:
The COVID-19 pandemic had a significant impact on all aspects of life in 2020. Its impact extended to the legal system in general and workplace class actions in particular. The pandemic spiked class actions (of all varieties) and litigation over all types of workplace issues. As the pandemic took hold, the plaintiffs’ bar retooled their class action theories to match. Employers are apt to see these workplace class actions expand and morph as businesses restart operations in the wake of COVID-19.
As state and local governments responded to the COVID-19 threat, many employers moved their employees to tele-work or work-from-home arrangements, or laid off or furloughed workers, and many businesses – and courts – shut down or postponed critical operations.
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Employees continue to file COVID-19-related lawsuits against their employers at a rapid clip. In July, we identified five categories of cases that seemed to be driving COVID-19 employment litigation: (1) alleged failure to provide a safe working environment; (2) discrimination claims, especially relating to disability and age; (3) leave claims under the FMLA and the patchwork of federal, state and local laws enacted to deal with the pandemic; (4) retaliation and whistleblower claims, usually attached to either a workplace safety or leave issue; and (5) wage and hour lawsuits arising out of the pandemics’ impact on business operations.