By Lauraann Wood

Law360 (June 3, 2020, 2:46 PM EDT ) An Illinois state court judge refused Wednesday to toss out a proposed class of Chicago McDonald's employees' accusations that the company and certain franchisees haven't done enough to protect them amid the ongoing COVID-19 pandemic.

Via livestream, Cook County Circuit Judge Eve Reilly rejected McDonald's Corp.'s argument that governmental agencies, including the state and local departments of health, had primary jurisdiction to hear claims that the fast-food giant's allegedly subpar response to the coronavirus has endangered its workers and constitutes a public nuisance.

"No one is asking this court to create any safety regulations" regarding the pandemic, Judge Reilly said. The dispute in the workers' case concerns whether McDonald's has followed regulations already distributed in response to the health crisis, and that is a "factual dispute that involves credibility determinations which the court is very well suited to handle," Judge Reilly said.

"Primary jurisdiction is not an affirmative matter that defeats the [employees'] claims," she added.

The ruling means the case proceeds to a Thursday morning hearing over the workers' request for a preliminary injunction that would require McDonald's to distribute accurate information about the coronavirus and provide adequate protection equipment for employees' interactions with co-workers and customers.

McDonald's counsel, Jonathan Bunge of Quinn Emanuel Urquhart & Sullivan LLP, had argued earlier Wednesday that the correct move would have been to defer to the local government agencies and let them hash out the workers' claims. He argued that workers' claims should be dismissed because they lie within the agencies' jurisdiction and require expertise to address, and there's a chance a court order could be inconsistent with any future guidance the agencies issue in response to the pandemic.

"What the court may determine is accurate information about COVID is not necessarily what these various governmental agencies might say," he argued.

The workers have said they can't bring their issues to the local agencies because they don't know how the agencies will respond, but "we don't know because they haven't done it," Bunge argued. If the employees truly thought they had a case, "they would have gone to the agencies months ago."

"The idea that they come into court in June and request an injunction … where these events they're complaining about happened in March is far-fetched," he told Judge Reilly. "This is a pandemic of historic proportions that changes by the hour. The agencies are given exclusive authority to deal with this, they should be allowed to deal with it."

The workers' counsel, Daniel Rosenthal of James & Hoffman PC, had argued earlier Wednesday that McDonald's concerns over potentially conflicting guidance was largely too speculative to consider. But the court could address that potential issue in its order by saying that McDonald's has to conform to any new guidance issued "and simply notify the court of what had occurred," Rosenthal said.

He also blasted Bunge's suggestion that the state health department has supreme authority over public health concerns. Illinois' administrative code says the Illinois Department of Public Health has that kind of authority "over matters of quarantine and isolation, period, not public health generally," he argued.

The workers could try to bring their complaints to the local regulatory agencies, but they "have no reason to believe that would be an effective mechanism" because IDPH is conducting fewer inspections than before the pandemic gripped the state, Rosenthal argued. There's also no evidence that any restaurant inspections conducted since the pandemic have been specifically related to COVID-19, he argued.

McDonald's wants its workers to take their claims to the regulatory agencies "because they know that it's going to add to delay and that we're not going to be able to get a strong order that protects our plaintiffs," Rosenthal told Judge Reilly.

A representative for McDonald's USA told Law360 in a statement Wednesday that the company is disappointed in Judge Reilly's ruling and still believes the regulatory agencies "are better suited to interpret and enforce the regulations related to COVID-19 than the courts." But the company is confident that she will determine that its workers' claims have no merit, according to the statement.

"The safety protocols in question in this lawsuit are already in place in Chicago and our 14,000 restaurants around the country," it said. 

Rosenthal said in a written statement Wednesday that he and his clients are pleased that Judge Reilly decided to hear their claims.

"We look forward to presenting our evidence at the upcoming preliminary injunction hearing," he said.

Five McDonald's workers and four of their live-in family members have alleged in Illinois state court that McDonald's Corp. and several franchisees mismanaged safety protocols in four Chicago restaurants, causing unsafe conditions and a "public nuisance" that could endanger public health. They asked the court to compel the fast-food giant to implement safety policies, require both customers and workers to wear masks and to supply adequate personal protective equipment.

The parties were originally set to proceed with a preliminary injunction hearing in late May, but McDonald's told Judge Reilly last week that it believes it can work out a resolution to its workers' complaints. 

The unsafe practices allegedly include workers being forced to work in close quarters with colleagues and customers who might be asymptomatic carriers, having to reuse dirty masks or gloves if they were provided with such protective gear at all and being directed to stay mum if workers were absent or suspected of being sick.

Besides a lack of safety equipment, the workers claimed the stores where they work didn't provide hand sanitizer and didn't offer safety training to employees. In some instances, workers were accused of stealing gloves if they asked for new ones and managers directed them to not talk about colleagues who were infected or who were absent, according to the suit.

The workers and their family members noted in their suit that McDonald's workers in the Chicago area have lodged "at least four complaints" in recent weeks with the Occupational Safety and Health Administration over purportedly unsafe working conditions, but the federal agency hasn't inspected any of the restaurant locations and hasn't ordered the operators of those sites to address the issues the workers have raised.

The workers are represented by David P. Dean, Daniel M. Rosenthal, Ryan E. Griffin and Michael P. Ellement of James & Hoffman PC, and Barry M. Bennett, Stephen A. Yokich and Elizabeth L. Rowe of Dowd Bloch Bennett Cervone Auerbach & Yokich.

McDonald's is represented by Jonathan Bunge and Daniel Lombard of Quinn Emanuel Urquhart & Sullivan LLP.

The case is Massey et al. v. McDonald's Corp. et al., case number 2020-CH-04247, in the Circuit Court of Cook County, Illinois.

--Additional reporting by Celeste Bott and Vin Gurrieri. Editing by Jack Karp.

Update: This story has been updated to include comments from McDonald's and the workers' attorney.

For a reprint of this article, please contact reprints@law360.com.