The Pandemic and the Public Nuisance: Judicial Intervention in the Era of COVID-19 and the Collective Right to Public Health

Amidst the unprecedented disruption caused by COVID-19, workplace lawsuits around the country began to apply a longstanding common law theory in a novel way: employee plaintiffs argued that their employers’ noncompliance with state and federal public health guidance designed to curb the spread of the virus should be enjoined as a public nuisance. Although some of these initial public nuisance suits were dismissed, others successfully forced defendant businesses to either alter their COVID safety practices or temporarily close. This Article explores the first pandemic-era public nuisance suit, Rural Community Workers Alliance v. Smithfield Foods, brought by meatpacking plant workers in Missouri to challenge conduct they alleged exacerbated their risk of exposure to the virus. Next, it analyzes the suit’s dismissal under the primary jurisdiction doctrine and examines subsequent civil actions predicated upon analogous legal theories. It also argues that the outcome of the Smithfield suit should not be dispositive for courts considering future similar claims. The Article subsequently explores the historical origins of public nuisance and its contemporary expansion into the public health sphere. Finally, it makes the case for further extension of the public nuisance doctrine in the era of COVID-19, utilizing instances of evictions and obstacles to absentee voting as opportunities to advocate for the theory’s continued employment to challenge conduct injurious to the public health