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Law360 (June 23, 2020, 11:20 PM EDT ) A California state judge instructed an Oakland McDonald's on Tuesday to stay closed until he decides whether to order the franchise's owners to improve their COVID-19 safety protocols after employees claimed they were forced to work while contagious and given face masks made from dog diapers.
The workers sued the franchise's owners last week over an outbreak that allegedly affected 35 individuals, including one employee's 10-month-old baby. According to the public nuisance suit, the restaurant's owners and managers failed to inform workers they had been exposed to the virus and have them self-quarantine, and failed to implement proper social distancing or cleaning protocols.
The five employees requested a temporary restraining order forcing the restaurant to remain closed until it complies with minimum COVID-19 health and safety standards and Oakland's paid sick leave laws.
In Tuesday's order, Alameda County Superior Court Judge Patrick R. McKinney scheduled a July 2 hearing on the workers' preliminary injunction motion and ordered franchise owner VES McDonald's to show cause why it shouldn't be granted. The judge also said that the restaurant must remain closed until the hearing unless the Alameda County Department of Environmental Health approves an earlier reopening.
Judge McKinney indicated that he may be willing to order VES McDonald's to implement a number of safety measures before reopening, including granting employees' sick leave requests, telling employees to stay home if they're experiencing COVID-19 symptoms or have been exposed, performing deep cleans and providing employees with adequate masks and gloves.
Michael Rubin, counsel for the workers, told Law360 on Tuesday that he and his clients are grateful Judge McKinney understood the magnitude of the problem and is requiring the restaurant stay closed. He added that the workers want to get back to work.
"They simply want to work under conditions that don't threaten their lives and the lives of their family, neighbors and friends," Rubin said.
Michael Smith, the restaurant's owner and operator, said in a statement provided to Law360 on Tuesday that he welcomes the court's decision.
"We have put together a reopening plan that addresses essentially all of the court's concerns and was approved by the Alameda County Department of Environmental Health last week," Smith said.
He added that the restaurant is a few weeks away from reopening because it was vandalized on June 12. But once those repairs are completed, the environmental health department will conduct an inspection and, hopefully, provide final approval, according to the statement.
"We look forward to educating the court on July 2 of all the steps we have taken and have committed to taking," Smith said. "Our priority remains the safety and well-being of our employees, customers, and the public."
McDonald's workers Marcos Garcia, Anglely Rodriguez Lambert, Maria Orozco and Yamilett Osoy filed suit on June 16, claiming the COVID-19 outbreak at the restaurant "is directly attributable to defendants' cold-hearted economic decision in May 2020 to ignore substantial, inescapable evidence of rising infection levels among workers."
Despite knowing employees had tested positive for COVID-19, the owners refused to close the restaurant, institute cleaning protocols or other precautionary measures, or give workers sick leave, the workers said. They went on strike May 26 and filed a complaint with the California Division of Occupational Safety and Health two days later, according to the suit. The restaurant has been shuttered since the strike.
On top of that, the employees alleged that, in March, the restaurant's managers provided employees with face masks made out of unused dog diapers or coffee filters.
A similar public nuisance suit was filed against several Chicago-area McDonald's restaurants in May, claiming lax safety standards have created a public health risk.
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, according to a proposed class action filed in Illinois state court.
The workers are represented by Michael Rubin, Stacey M. Leyton, Barbara J. Chisholm and Corinne F. Johnson of Altshuler Berzon LLP.
VES McDonald's is represented by Michael G. Pedhirney of Littler Mendelson PC.
The case is Yamilett Olimara Osoy Hernandez et al. v. VES McDonald's et al., case number RG20064825, in the Superior Court of the State of California, County of Alameda.
--Additional reporting by Vin Gurrieri and Y. Peter Kang. Editing by Breda Lund.
For a reprint of this article, please contact reprints@law360.com.
