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Monday, June 29, 2020

Coronavirus Update 6–29–2020: Judge hands McDonald’s a whopper of a rebuke for its COVID-19 response


A month ago I reported on a novel lawsuit filed against McDonald's Corporation in which the plaintiffs sought to have the fast-food conglomerate's alleged failure to comply with health guidance and provide PPE to its employees declared a public nuisance.

Last week, the judge granted the plaintiffs a preliminary injunction, concluding that they were likely to succeed on the merits of their claims. In so ruling, he concluded that the company fell short in its obligation to keep safe its employees and its customers.

At issue in the case was McDonald's exception to its face-covering and social distancing policy, which states, "Please note that individuals may be closer to each other than 6 feet, and pass each other momentarily, as long as it's not for a period of 10 cumulative minutes or more."

The court did not find that policy was reasonable (or likely to be lawful) under any set of circumstances during this pandemic.

McDonald's has created an environment that 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. This increases the health risk for the employees, their families and the public as a whole and conflicts with the Governor's Order on social distancing potentially undoing any good it has done as we fight this incredibly contagious disease. …

"Trying your best" in a pandemic can still cause substantial interference with the public health in a pandemic, especially when employees are not expected to remain 6 feet apart for periods of less than ten minutes. Defendants' inability to ensure that employees are appropriately covering their face when not 6 feet apart is unreasonable given the magnitude of the potential consequences. …

McDonald's social distance training is not in compliance with the Governor's Order, nor has the Court been made aware of any CDC guidance that supports McDonald's 10 minute exception to social distancing protocol. …

This potentially hazardous combination contradicts the Governor's Executive Order and Illinois public safety guidelines on social distancing which require people to maintain a 6 foot distance from each other or wear a mask. The 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. This increases the health risk for the employees, their families, and the public as a whole and conflicts with the Governor’s Executive Order. 

This is the opinion of one judge in one state court on a novel legal theory. However, it does illustrate that employers are taking some (a lot of?) legal risk if they ignore, flout, misstate, or misapply state or local safety and reopening rules. Learn the rules for your jurisdiction, and train your managers and supervisors on them so that they can enforce them to keep everyone as safe (and legally compliant) as possible.