Wednesday, May 27, 2020

Coronavirus Update 5-27-2020: Is McDonald’s really a public nuisance?

As I've written in the past, it's difficult bordering on impossible for an employee to sue their employer based on an alleged COVID-19 exposure at the business. First, they have to overcome the issue of workers' comp exclusivity. And if they can manage to clear that, they still have the causation problem of proving that the exposure of this highly transmittable virus happened at work (as opposed to anywhere else in the world). 

There's nothing like a pandemic, however, to spark the creativity of lawyers. Workers and their families have filed a class-action lawsuit against McDonald's Corporation seeking to have the fast-food conglomerate's alleged failure to comply with health guidance and provide PPE declared a public nuisance.

Reuters has the details.

The case targets McDonald’s as a public nuisance, a legal strategy previously used to shutter strip clubs and the famed Limelight nightclub in Manhattan.

Typically, workplace safety is a matter for the federal Occupational Safety and Health Administration (OSHA), which has the authority to inspect businesses and issue citations. By focusing on community health, the lawsuit attempts to move outside OSHA’s jurisdiction and into the courts. …

To prevail, plaintiffs must prove a defendant interfered with a public good, like the community’s health. Unlike a typical lawsuit, it does not generally require proof that the defendant directly injured someone.

Rather than prove someone was infected with the coronavirus at McDonald’s, the workers must instead show the company created an unsafe workplace that posed an imminent threat of contributing to its spread.

The article points out that a judge struck down a similar claim brought against Smithfield Foods, holding that workplace safety is a matter for OSHA and not a nuisance lawsuit.  

While this case is an uphill legal battle for the plaintiff, it's a public relations nightmare for McDonald's, as no business wants to be accused of maintaining a public nuisance. The chain will likely have to meet the plaintiff's demands to avoid ongoing negative publicity

The real winner here, however, isn't the ultimate prevailing party. The real winner is the labor union representing the workers. My opinion is that the COVID-19 pandemic will spark a new golden age for labor unions. Tomorrow, I'll share my thoughts on what you as an employer can and should do about it right now. 

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Finally, today is my daughter's 14th birthday. Being stuck at home for the past 75 days(!) has been rough for her, with no personal contact with her music, bandmates, or other friends. I'd like to gather as many online birthday wishes for her as possible. Thanks in advance.

* Image by Akukahr from Pixabay