An issue now being evaluated by courts is whether this exclusive remedy principle bars employee suits for public nuisance injunctive relief. The case law addressing this question is relatively scarce, but not all courts take the view that the exclusive remedy principle bars all actions in tort against employers. Take the recent Massey v. McDonald’s Corp. as an example. In that case, an Illinois trial court granted in part plaintiffs’ request for a preliminary injunction (but not damages) against two McDonald’s franchises due to their alleged failure to implement adequate safety guidelines to address COVID-19 risks, which the court concluded likely contributed to the spread of COVID-19 in the community. In the wake of this highly publicized lawsuit, similar claims may follow.

To limit potential exposure to these lawsuits, businesses should familiarize themselves with, and adhere to, applicable local, state and federal safety guidelines and implement safety measures specific to their work environment. That may include providing training on social distancing practices, issuing personal protective equipment, and implementing COVID-19 screening and contact-tracing processes. Also, good communications with employees about the safety measures that an employer is implementing may help keep the employer out of these novel law suits, as workers may not believe there is a need to pursue injunctive remedies if they are comfortable that their employers are taking sufficient steps to keep the workplace safe.