Can a Workplace Be Closed by Law as a Covid-19 "Public Nuisance"?

Two weeks ago, several employees at a McDonald’s franchise in Oakland, California filed a lawsuit against their employer, in a matter entitled Hernandez v. VES McDonald’s (No. RG20064825, Superior Court of California, County of Alameda). The lawsuit consists of five plaintiffs, three of whom are employees who allege that they became sick with COVID-19 while working at the restaurant and “unknowingly” spread the disease to family and other members in their communities. The fourth is the infant son of one of the plaintiffs who allegedly contracted COVID-19 from his mother. The final plaintiff is an employee who worked in the same restaurant. At the time the complaint was filed, he had not yet tested positive for COVID-19 but “fears becoming infected and spreading the disease to others.”

Superior Court Judge Patrick McKinney (no relation) in Oakland issued a temporary restraining order through July 2 and said the franchisee, VES McDonald’s, must show at the hearing that day that it will make protective gear available to employees, grant leave to sick workers and “deep clean” the restaurant in order to reopen.

The plaintiffs allege causes of action for public nuisance, unfair and unlawful business practices, and violations of Oakland’s Emergency Paid Sick Leave Ordinance. The Oakland lawsuit comes a month after employees at a Chicago-area McDonald’s filed suit alleging similar allegations.

Employees are increasingly being caught in a Catch-22 situation of wanting to return to work to earn a living but not wanting to be required to work in unsafe conditions. OSHA, the federal workplace safety watchdog agency, has been rendered largely useless by pro-business lobbying efforts. This leaves employees and the lawyers who represent them without strong tools to require employers to provide safe working conditions for their employees.

Using a nuisance theory is a novel approach. We will have to see if it is successful in doing what government agencies have thus far not been able or willing to do — keep employees safe at work.