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The Unhappy Meal – A Case Study In The Importance Of Developing & Executing An Effective Return-To-Work Policy


Introduction

In today’s environment, business as usual is anything but usual.  Companies are struggling to normalize operations and bring their employees back to work in a safe, healthy environment that is also safe for the public.  The highly contagious nature and morbidity of COVID-19 make it imperative for companies to design and implement prophylactic measures governing their employees’ conduct in the workplace.

To assist companies in designing adequate return-to-work policies, the CDC and OSHA have developed guidelines to help identify risk levels in the workplace and appropriate control measures to implement.  These measures include, but are not limited to, sending home symptomatic employees, implementing social distancing practices, employing regular cleaning and sanitizing protocols, and identifying and supplying the type of personal protective equipment (“PPE”) necessary to safeguard employees in their specific workplace environment. (For a comprehensive summary of the CDC and OSHA guidelines, see CDC Interim Guidance for Businesses  &  Employers Responding to COVID-19).

In light of these guidelines, as well as those issued by state governments, tension exists between employers’ return to work policies and employees who are apprehensive about returning to (or remaining at) work.  This tension promises to open the floodgates to employment-based lawsuits.  Indeed, one recent high profile case to provide some judicial guidance on the issue is a lawsuit involving McDonald’s—Massey v. McDonald’s.  Although a ‘remain at work” case based primarily on a public nuisance claim, McDonald’s provides early and timely insight into how courts approach questions relating to the adequacy of workplace policies in the age of COVID-19.

Massey v. McDonald’s

On May 19, 2020, five McDonald’s employees and four of their family members (the “Plaintiffs”) commenced a class-action lawsuit in the Circuit Court of Cook County, Illinois County Department, Chancery Division, entitled Massey v. McDonald’s Corporation, et. al., against McDonald’s parent corporation, its wholly-owned subsidiary, which owns all of McDonald’s corporate stores nationwide, and certain corporate-owned McDonald’s restaurants located in and around Chicago (collectively, “McDonald’s”).  Plaintiffs’ asserted causes of action for public nuisance and negligence, both arising from McDonald’s alleged failure to implement and enforce certain safety protocols to safeguard Plaintiffs and McDonald’s patrons against COVID-19.  Contemporaneous with the filing of their Complaint, Plaintiffs asked the court to issue an emergency preliminary injunction requiring McDonald’s to, among other things, immediately supply them with adequate PPE, gloves, and hand sanitizer, and to train employees on how to minimize the spread of the virus.

Plaintiffs alleged that certain McDonald’s restaurants decided to remain open during the pandemic but failed to comply with minimum basic health and safety standards, including: (1) failing to supply gloves, masks, and hand sanitizer to employees; (2) allowing patrons of the restaurants to use the restrooms, but taking no additional measures to ensure the restrooms were sanitized adequately; (3) advising employees that they do not need to physically distance as long as they keep their conversations or close physical contact to less than 10 minutes; and (4) failing to disclose to all workers at one of the restaurants that a particular co-worker was diagnosed with COVID-19.  Plaintiffs further argued that McDonald’s liability for maintaining a public nuisance and negligence entitled them to a mandatory injunction requiring McDonald’s to, among other things, supply workers with adequate PPE, cease and desist from forcing workers to reuse face coverings and gloves in a manner that makes them unsafe, supply hand sanitizer for workers and customers entering the restaurants, and monitor infections among workers.

McDonald’s opposed Plaintiffs’ preliminary injunction motion and moved to dismiss the Complaint.  In doing so, McDonald’s argued, among other things, that it had acted responsibly to safeguard workers against the risk of infection.

After a four-day evidentiary hearing, the Court issued an Order on June 24, 2020, finding that McDonald’s had complied with its health and safety obligations, but nonetheless enjoined McDonald’s from training employees on social distancing in a manner inconsistent with the Illinois Governor’s Executive Order and directed McDonald’s to enforce its mask wearing policies when employees are not six feet apart to come into compliance with the Executive Order.

In reaching its decision, the Court first acknowledged the grave threat that COVID-19 continues to pose on public health, noting the state and federal-issued orders and guidance adopted to limit the spread of the virus, and then proceeded to engage in the necessary factual examination of the subject stores’ practices to determine whether the Plaintiffs demonstrated a likelihood of success on the merits of their public nuisance claim—here, the public right to be free from an environment that may endanger public health.  The Court’s analysis focused on whether McDonald’s (1) provides its employees with masks and gloves; (2) displays sanitizer throughout their restaurant facilities; (3) monitors infections among employees; (4) provides accurate information about COVID-19 to the employees; and (5) implements a compliant social distancing policy.

While the Court found that the evidence weighed in favor of McDonald’s on the first four factual questions, it found Plaintiffs met their burden on the fifth question—that the employer failed to implement a compliant social distancing policy.  The Court held that “[t]he current McDonald’s environment leads employees, including managers, to believe they can take off their masks and stand within 6 feet of each other as long as they do not do so in excess of 10 minutes and that “[t]his increases the health risk for the employees, their families, and the public as whole and conflicts with the Governor’s Executive Order.”  Therefore, according to the Court, although McDonald’s had made efforts to enforce a social distancing policy, the reality on the ground was that the current procedures were not working, and as a result, McDonald’s was substantially and unreasonably interfering with Plaintiffs’ right to work free from exposure to a highly contagious and deadly disease.

As for their negligence claim, the Court ultimately determined that Plaintiffs could not demonstrate a likelihood of success, because, among other things, Plaintiffs’ injuries were, at that point, speculative, as none of the Plaintiffs had been directly exposed to or infected by COVID-19.  Thus, the Court’s injunction requiring state-compliant training and enforcement of McDonald’s social distancing policy rested on Plaintiffs’ public nuisance claim.

As further grounds for issuing its injunction, the Court determined that: (1) Plaintiffs and the public had a clear right to be free from conduct that creates a public nuisance—specifically COVID-19; (2) infection with COVID-19 presents a risk of irreparable injury  not compensable by monetary damages; and (3) the balancing of equities militates in Plaintiffs’ favor, as they are asking McDonald’s to enforce its own policies, which in large part, are supported by the Illinois Governor’s Executive Order and CDC.

Takeaways

As more and more companies require their employees to return to work, employers need to carefully prepare their plans to ensure that the work environment complies with current state and federal safety standards specific to COVID-19, and then vigilantly execute those plans and policies to reduce potential exposure to legal claims that the plans were inadequate or not followed.  As the McDonald’s case shows, failure to adhere to stated policies and governmental guidelines can result in litigation, injunctive relief, and other potential remedies.  Employers should thus work closely with counsel well-versed in COVID-19 issues and employment law to accomplish these goals.

We are available to advise you on COVID-19 litigation related issues. For more information contact either James P. Chou at jchou@moritthock.com or (212) 239-5523, Stephen J. Ginsberg at sginsberg@moritthock.com or (516) 880-7219 or Jonathan Trafimow at jtrafimow@moritthock.com or (516) 880-7283.

 

 

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