A number of Chicago-area McDonald’s employees and their live-in family members have filed a lawsuit against McDonald’s corporation and several franchisees, alleging that the restaurants’ unsafe working conditions during the coronavirus pandemic create a public health risk. In Massey, et al. v. McDonald’s Corp et al., (Case No. 2020-CH-4247), the plaintiffs allege that the employees are forced to work in close proximity to others and that McDonald’s has failed to take adequate and important steps to prevent the spread of the coronavirus, such as providing adequate protective equipment and safety training, in disregard of expert recommendations and government guidance. Further, the employees’ family members allege that they are likely to suffer the consequences of COVID infections that originate in the McDonald’s workplace, including caring for sick relatives and increased risk of infection. The plaintiffs are seeking an injunctive order forcing McDonald’s to provide a safe working environment and not any monetary damages.

McDonald’s filed a motion to dismiss the Cook County lawsuit, arguing that state and local agencies with public health expertise have primary jurisdiction over worker safety and public health, and that any court ruling could potentially conflict with guidance issued by those agencies. The plaintiff workers and their families claimed that they had filed multiple complaints with the federal Occupational Safety and Health Administration (OSHA), but that the agency had not conducted any inspections and there was no evidence that OSHA was investigating the restaurants where the plaintiffs worked. The plaintiffs argued that because they were simply asking the court to order McDonald’s to comply with the guidance issued by the government health agencies, there was no potential for conflict. 

The court denied McDonald’s motion to dismiss. Ruling from the bench, the judge stated that even if government health and safety agencies have primary jurisdiction over these issues, that does not necessarily preclude the McDonald’s employees from pursuing these claims in court or require the court to abdicate its judicial function when such a nuisance could harm the general public. 

The following day, the court began a multi-day hearing on the plaintiffs’ motion for injunctive relief. As of the date of this article, the court has heard from a number of McDonald’s employees as to the lack of signage or clear instruction from their employers, as well as the current working conditions within the restaurant. The court also heard testimony from Peter Orris, a professor and chair of the occupational medicine department at the University of Illinois School of Public Health. The court has continued the preliminary injunction hearing, with additional testimony to be heard later this week.

The Cook County case is part of a new wave of litigation attempting to push back at companies’ coronavirus responses under the guise of a broader public nuisance that facilitates community spread.  One of the early cases to raise this argument, Rural Community Worker’s Alliance, et al. v. Smithfield Foods, Inc. (Case No. 5:20-CV-06063-DGK), was dismissed without prejudice by 

U.S. District Court for the Western District of Missouri.  There, plaintiff workers and a local community organization alleged that Smithfield, one of the largest meat-processing companies in the world, failed to provide sufficient PPE, practice appropriate social distancing, provide adequate time for employees to wash and sanitize their hands, discouraged employees from taking appropriate sick leave, and failed to test and/or trace sick employees.  However, at the time of the suit, Smithfield was in the midst of an OSHA investigation, and, via Presidential Executive Order along with other meat and poultry processors, became subject to additional oversight by the Secretary of Agriculture.  The court therefore concluded that OSHA had primary jurisdiction over the matter.    

Further, the alleged deficient protocols of which the Smithfield plaintiffs complained occurred in April 2020, as the coronavirus pandemic was sweeping the U.S. and companies were facing a quickly-changing environment and continuously-evolving guidance.  By the time the Smithfield court considered the plaintiffs’ request for a preliminary injunction, Smithfield had already instituted significant new measures to protect its workers.  Further, this Smithfield plant had not had a single positive COVID case, and the court concluded that the mere potential to contract COVID was too speculative to support injunctive relief.  

Crucially, the court noted that Smithfield “cannot be a public nuisance simply by virtue of the fact that it is a meat-processing plant during a global pandemic.”  In fact, one of the main issues plaintiffs raised was the close proximity of workers on the processing line, demanding that Smithfield spread out workers, or slow down the line to enhance social distancing.  The court rejected that stance, finding that the CDC and OSHA had not issued such a recommendation.  In short, while a company may be expected to follow current recommendations, it is not required to modify the nature of its business; as the court explained, “it is important that employers make meaningful, good faith attempts to reduce the risk.”  

A similar case, Palmer et al. v. Amazon.com, Inc., et al., Case No. 1:20-cv-02468, is currently pending in the U.S. District Court for the Eastern District of New York.  Plaintiffs, workers in Amazon’s Staten Island fulfillment center and their families, also assert that Amazon’s allegedly-lax coronavirus protocols and strict work pace create a public nuisance.  Unlike Smithfield, however, the Amazon site reported over forty (40) confirmed cases and at least one (1) death, and the plaintiffs allege that numerous family members of Amazon workers also became infected with COVID, resulting in fatalities.  Further, the case, filed June 3, 2020, comes months into the infection timeline of this hard-hit region with a history of community spread.  Again, plaintiffs take issue with some of the fundamental aspects of the Amazon facility, such as the regular transfer of products among the workers, the fact that many workers rely on public transit to reach the facility, and the increased demand for Amazon’s services, and allege emotional distress knowing that, as employees, they may be putting their families at risk, or that, as family members of Amazon workers, their loved ones may be at risk.  Plaintiffs’ Motion for a Preliminary Injunction remains pending, with numerous amici weighing in on this case.   

The possibility that a company may be answerable to the broader public for its coronavirus response – or lack thereof – is a development companies should carefully monitor.  As the Smithfield court stated, employers who make “meaningful, good faith attempts to reduce the risk” will be well-placed to defend against any such allegations.  

Stephanie D. Wilson and Kristin A. Zech are partners with Berenzweig Leonard’s employment law practice.  They may be reached at [email protected] and [email protected], respectively.