California McDonald’s Workers Cite COVID-19 Safety Issues

Los Angeles, CAMcDonald’s workers filed complaints under the Private Attorney Generals Act (PAGA) claiming that the California Division of Occupational Health and Safety’s failure to address COVID-19 workplace safety issues has put workers in “imminent danger.”  McDonald’s now has less than a month to correct violations of the California Labor Code. Thereafter, either the state or workers can sue the fast-food giant.

The PAGA complaints follow fast on the heels of a worker safety class action lawsuit filed against McDonald’s in Chicago. Is this a harbinger of things to come?

Worker safety on the back burner at Mickey D’s

The PAGA complaints allege that workers at a Los Angeles restaurant were not informed that they may have had direct or indirect contact with an employee who was diagnosed with COVID-19. In addition, at a Monterey Park location, a worker infected with the COVID-19 virus was permitted to return to work within a day of calling in sick, despite exhibiting virus symptoms. She came in direct contact with coworkers, several of whom subsequently developed COVID-19 symptoms as well.

To date McDonald’s response has focused updated processes and procedures included in a 59-page corporate guide outlining national health and safety standards that individual restaurants must implement.

Enforcement of California workplace health and safety standards

The California Division of Occupational Health and Safety is the creature of the California Occupational Safety and Health Act of 1973 (Cal/OSHA) now codified as part of the California Labor Code. It requires employers to assure “safe and healthful working conditions for all California working men and women.” More to the immediate point for workers, it:

• provides a complaint mechanism;
• permits workers to refuse to perform hazardous work; and
• protects workers from employer retaliation for filing a complaint with Division of Occupational Health and Safety.

On the other hand, like many other state laws designed to protect worker health and safety, the agency has not had a reputation for swift and effective regulatory enforcement. 

Perhaps in tacit recognition of this, PAGA authorizes employees to file civil lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations. In terms of understanding the process, that is where the McDonald’s COVID-19 complaints now stand. For essential workers looking to California law to protect their health during the pandemic, the process is undeniably slow and frustrating.

Help on the horizon?

Class action lawsuits may represent a further step in this long struggle to protect worker safety. Massey v. McDonald’s Corp., for example, alleges that McDonald’s maintained a public nuisance in violation of Illinois common law by requiring required plaintiff workers to work “in close proximity to other workers and customers, each of whom may carry the deadly virus even while showing no symptoms.”

McDonald’s allegedly failed to take important steps to contain the virus by providing adequate protective equipment, hand sanitizer and safety training for employees, or enforcing safety protocols. The employer thereby endangered not only the workers, but the family members with whom they live.

The emphasis in Massey is on actual practice at individual restaurants, rather than corporate procedures and protocols, as outlined in training materials. The Complaint alleges specifically that:

• At one location, managers arbitrarily limited the supply of gloves and hand sanitizer, putting them in locked storage cabinets. When employees requested gloves, managers denied access, accusing workers of being wasteful or trying to steal them. Managers told workers to reuse their gloves throughout their shifts.
• Managers allowed members of the public to enter the restaurant to use the restroom, but the store took no additional measures to ensure the restrooms were sanitized adequately.
• At another McDonald’s restaurant, managers erroneously told workers they did not need to physically distance as long as they keep their conversations or close physical contact to less than 10 minutes.
• At least one worker at the latter store tested positive for COVID-19, but managers failed to inform other workers and provided no information to employees on safety protocols. To the contrary, a manager instructed workers not to discuss employee COVID-19 infections and absences with co-workers.

Neither the Massey workers nor family members seek damages; they ask only for an order that would require the parent corporation and individual franchisees to adhere to take legally required steps to provide a safe working environment.

Although some of the allegations are similar in the California and Chicago lawsuits, including stories of workers being kept in the dark about co-workers diagnoses, there are also differences. Massey is based on common law relating to public health, rather than statutory law relating to worker safety.  The California complaints have yet to actually mature into a lawsuit, but are still at the stage of administrative resolution. Further, Massey focuses only on actual practice at McDonald’s locations and seeks only a change in the restaurants’ actual practices with respect to existing law. It resists defendants’ efforts to sidetrack the lawsuit into evidence concerning the adequacy of corporate handbooks.

Workplace safety lawsuits arising from COVID-19 risks to employees could take a number to different routes. Among the legal community, however, there is a widespread expectation that these lawsuits will multiply in the near future.