By Lauraann Wood

Law360 (June 24, 2020, 6:04 PM EDT ) McDonald's Illinois operations and a McDonald's franchise owner should be doing more to protect employees at their restaurants as they continue to work amid the ongoing COVID-19 pandemic, an Illinois state court judge said Wednesday.

Cook County Circuit Judge Eve Reilly partially granted the McDonald's employees' bid for a preliminary injunction against McDonald's Restaurants of Illinois and franchise owner DAK4 LLC, requiring the companies to provide workers at three Chicago locations with more adequate social distancing training and stricter mask enforcement practices.

McDonald's has taken several reasonable steps to mitigate the spread of COVID-19, including providing adequate amounts of handwashing stations and protective gear, Judge Reilly said. But it needs to fix the "two serious failures" that remain in the restaurants at issue — two of which have had employees test positive for the virus, she held.

Evidence from the parties' four-day preliminary injunction proceeding shows that although the fast food giant "has the right idea" for protecting its workers, "it is not being put into practice exactly as McDonald's envisioned, thus endangering public health," Judge Reilly said.

"The hardship McDonald's would suffer by strictly enforcing its mask policy and retraining employees on proper social distancing procedures is slight," the judge held. "Now, McDonald's may need to re-envision how it wants to implement the policy so as to ensure full compliance, but that is for McDonald's to decide."

McDonald's Corporate and McDonald's USA can't be enjoined because they don't own any of the restaurants at issue in the workers' suit, Judge Reilly said.

The workers' counsel, Daniel Rosenthal of James & Hoffman PC, said in a written statement Wednesday that he's pleased Judge Reilly issued an injunction "that will not only help keep workers safe, but will also protect workers' families, McDonald's customers, and the community at large."

"Coupled with the temporary restraining order issued against a McDonald's restaurant in Oakland yesterday, this decision shows that companies like McDonald's cannot get away with creating a public nuisance," he said.

A representative of McDonald's USA said in a written statement Wednesday that the company has always operated with crew and customer safety at the forefront of its priorities. The company is also pleased Judge Reilly "found that strong measures are already in place across these Chicagoland restaurants to create a safe experience for customers and crew … as McDonald's is doing throughout the country."

"These measures are part of the 50 processes we have enhanced during the pandemic to keep restaurant employees and customers safe," it said.

McDonald's currently leads its workers and managers to believe they can remove their masks and stand within 6 feet of each other as long as the close contact lasts fewer than 10 minutes, the judge said. But the 10-minute cap isn't supported by state and regulatory safety guidance, and expert testimony indicates masks are supposed to be a person's defense against the virus when social distancing directives can't be properly followed, she said.

One McDonald's manager testified that she and other managers at her location provide consistent social distancing coaching to combat the instances when employees are standing too close. But "continuous coaching on incorrect training is just reinforcing the incorrect behavior," Judge Reilly said.

"Therefore, while defendants have made efforts to enforce their policy the reality is that the current procedures defendants are using are not working," she said. "As a result, plaintiffs' right to work free from exposure to a highly contagious and deadly disease is being substantially and unreasonably interfered with."

A manager from a different location at issue testified that she's seen employees' masks slide down workers' faces, and that they're "trying their best" to wear them properly as they work. But "'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 10 minutes," Judge Reilly held.

"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," she said.

The ruling comes after a four-day hearing during which Judge Reilly heard from both McDonald's and its workers regarding what the fast-food giant has or hasn't done to ensure employees are taking proper and adequate precautions as they continue to serve customers through the ongoing pandemic.

Several plaintiffs testified that the nature of their job duties makes it nearly impossible to maintain a safe distance from their coworkers. They also testified that they've seen coworkers failing to wear their face masks properly without managers' correction, and that they haven't seen much signage posted around their restaurants explaining how to stay safe at work or what to do if they feel unwell.

McDonald's fought those contentions by presenting managers of the stores at issue, who testified that they've continuously held both personal and huddle coronavirus safety talks with workers and required them to sign a paper acknowledging they happened. The managers also testified that workers have enough protective gear to use as they need, and training on how to consistently use it properly is a "constant" conversation.

Five McDonald's employees, along with some of their family members, launched their suit on May 19, claiming their employers mismanaged safety protocols in four Chicago restaurants, causing unsafe conditions and a "public nuisance" that could endanger public health. The workers dropped their bid for an injunction at one of the franchise locations after it came under new ownership halfway through the preliminary injunction proceeding.

The workers are seeking in their suit to represent a class with two subgroups, one that consists of employees who have worked at the restaurants at issue in the suit since April and another of people who live with those employees.

Preliminary injunction proceedings began the day after Judge Reilly rejected McDonald's argument that governmental agencies, including the state and local departments of health, had primary jurisdiction to hear the workers' claims.

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 Vin Gurrieri. Editing by Alyssa Miller.

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