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McDonald’s Workers Win Virus Safeguards in ‘Dog Diaper’ Case (Corrected)

June 23, 2020, 9:04 PMUpdated: July 10, 2020, 8:28 PM

A McDonald’s restaurant in Oakland must boost its Covid-19 safety protocols in order to reopen, a judge ruled in a case testing whether workers can sue to force employers to keep them safe during the pandemic.

A judge in Alameda County, Calif., granted on Monday the McDonald’s workers’ request for a temporary court order while the parties continue litigating the case. The order affects a franchise location. McDonald’s Corp. isn’t a defendant in the case.

Judge Patrick McKinney said the VES McDonald’s can’t reopen before a July 2 hearing unless it gets approval from county health inspectors. The hearing will address the workers’ bid for a preliminary injunction requiring the restaurant to adopt a series of protective measures, such as enforcing physical distancing, conducting employee temperature checks, and providing sufficient masks and gloves. The workers alleged in their lawsuit that the restaurant’s safety failures included offering masks made of coffee filters or dog diapers.

The ruling represents a big win for workers trying to apply the long-standing public nuisance doctrine to occupational safety during 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.

McDonald’s faces a similar public nuisance lawsuit in Illinois state court involving alleged safety failures at four Chicago locations. A judge is expected to rule on the worker’s request for a preliminary injunction sometime this week.

Meatpacking workers at a Smithfield Foods Inc. facility lost their lawsuit alleging the company’s lax coronavirus safety measures created a public nuisance. The workers asked the judge to reconsider his May 5 order dismissing the lawsuit, particularly in light of the spread of Covid-19 at the plant since he tossed the case.

In the Oakland case, the workers’ attorney applauded the ruling and said she looks forward to the July 2 hearing.

“We are glad the court took action both by imposing conditions on the store’s re-opening and setting a quick hearing on the workers’ request for additional safety measures,” the workers’ lawyer, B.J. Chisholm of Altshuler Berzon, said in an email. “These measures are necessary to guard against the further spread of COVID-19 and to ensure the health and safety of the workers and their families.”

VES McDonald’s owner Michael Smith denied the workers’ allegations, saying via email that the restaurant was complying with government guidelines and orders, which includes mandatory masks and gloves.

“We personally purchased 3,000 masks and 500 sets of gloves for a total of 375 employees in our organization in an effort to further mitigate any risk of transmission in any of our restaurants,” Smith said.

McDonald’s corporate didn’t respond to a request for comment.

The case is Hernandez v. VES McDonald’s, Cal. Super. Ct., No. RG20064825, Order 6/22/20.

(Updates the third and seventh paragraphs to clarify that the judge's order allows the restaurant to reopen if it obtains approval from county health inspectors. Story originally published June 23.)

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; Karl Hardy at khardy@bloomberglaw.com

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