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McDonald’s Can’t Get Early Out From Virus Worker Safety Case (1)

June 3, 2020, 7:36 PMUpdated: June 3, 2020, 9:37 PM

McDonald’s workers in Chicago can press forward with their lawsuit challenging the fast food chain’s efforts to protect workers from the coronavirus, an Illinois judge said, keeping alive a lawsuit that could require the company to adopt safety protocols under a court order.

Cook County Circuit Court Judge Eve Reilly on Wednesday rejected McDonald’s Corp.'s bid to dismiss the lawsuit claiming the company’s inadequate Covid-19 safeguards constitutes a public nuisance that will further spread the disease. McDonald’s argued that Reilly should toss the lawsuit because federal, state, and local regulatory agencies have primary jurisdiction over worker safety and public health.

“The court has no cause to abdicate its judicial function, even if a remedy could be found in administrative bodies,” Reilly said at the close of a remote hearing.

The workers and their legal team crossed their first hurdle to apply the long-standing public nuisance doctrine to occupational safety in the Covid-19 pandemic. While the doctrine has traditional roots in land-use disputes, plaintiffs have had some successes in recent decades applying it in cases involving issues like lead paint and the opioid epidemic.

Reilly cited Illinois precedent 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.

But a federal judge in Missouri dismissed a similar worker lawsuit against Smithfield Foods Inc. last month. The Occupational Safety and Health Administration has primary jurisdiction over worker safety, the judge said.

Preliminary Injunction Up Next

Lawyers for McDonald’s and the workers will appear at an evidentiary hearing Thursday on the workers’ request for a preliminary injunction.

The workers aren’t seeking money damages, but rather a court order forcing the company to adopt protected measures from an Illinois executive order and Centers for Disease Control and Prevention guidance. Those steps include requiring face coverings and supplying hand sanitizer.

McDonald’s insists those protocols are already in place at all of their locations, including the corporate-run and franchise restaurants involved in the lawsuit. But the workers claim otherwise.

“This is a factual dispute that involves credibility determinations, which the court is very well suited to handle,” Reilly said.

McDonald’s said in a statement that it’s disappointed in the judge’s decision but remains confident it will prevail in the case.

A lawyer for the workers, Daniel Rosenthal of James & Hoffman, said in a statement that they’re pleased the lawsuit will proceed and look forward to the next hearing.

The case is Massey v. McDonald’s, Ill. Cir. Ct., No. 20CH4247, Ruling 6/3/20.

(Updated with comment from the workers' lawyer in the 12th paragraph.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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