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As restaurant workers sue over COVID-19 protections, pressure builds for shielding employers

Operators and Republican leaders are pushing for protections against liability suits.
McDonald's Corporate
Photograph: Shutterstock

Five employees of McDonald’s restaurants in the Chicago area have filed a lawsuit alleging the chain did not adequately protect them against COVID-19—the very sort of legal action business groups are rallying to outlaw on the federal level.

The suit accuses the franchisor and several of its franchisees of disregarding “expert recommendations and government guidance” for protecting employees and customers of the stores where the five worked. One of the plaintiffs has tested positive for the virus.

They were joined in the filing by five individuals who work elsewhere but live with the five McDonald’s crew members. “Although they do not work in McDonald’s restaurants, they are likely to suffer the consequences of infections originating in the workplace,” the complaint states.

The action came as Republicans in the U.S. Senate are vowing to stonewall any additional coronavirus relief measure that does not shield employers from lawsuits alleging they did not do enough to protect employees from COVID-19. Proponents argue that exposing businesses to legal action will discourage some from opening until the danger lessens and make others the targets of frivolous lawsuits from individuals looking for a payout.   

“We are not talking about immunity from lawsuits,” Senate Majority Leader Mitch McConnell, R-Ky., said last week on the Senate floor. “There will be accountability for actual gross negligence and intentional misconduct.

“But we are going to provide some certainty,” he continued. "If we want American workers to clock back in, we need employers to know that if they follow the guidelines, they will not be left to drown in opportunistic litigation.”

Opening businesses to potential liability lawsuits for their handling of employees during the crisis was a nonstarter, he stressed. “It’s going to be a red line for us in any future coronavirus legislation. The administration has already stated its support for action on this issue as well,” said McConnell.

The restaurant industry has been among the business forces pushing for the curb on liability. At a meeting yesterday at the White House, chain executives included the protection on their short list of asks from President Trump.

“We think business liability protection for small businesses is important,” Jose Cil, CEO of Burger King and Popeyes parent Restaurant Brands International, told Trump, Secretary of the Treasury Steve Mnuchin, National Economic Council Director Larry Kudlow and other high-level administration officials. “With the reopening of small restaurants, we’re going to see frivolous and unfounded lawsuits against restaurant owners. We firmly believe that protection from these types of frivolous lawsuits would be helpful.

Niren Chaudhary, CEO of Panera Bread, also called on the White House to push through the protection. He and other participants in the roundtable discussion heard an assurance from Kudlow that the administration is “working very hard on the COVID-19 liability restrictions.”

Congressional Democrats have been just as adamant in vowing to resist any sort of litigation protection. “Especially now, we have every reason to protect our workers,” Speaker of the House Nancy Pelosi said during a press conference the day after McConnell pledged to protect employers from lawsuits. “So we would not be inclined to be supporting any immunity from liability.”

Not all employer groups support the concept of liability curbs. Main Street Alliance, a national affiliation of 30,000 small businesses, expressed its “deep opposition” in a letter Friday to McConnell, Pelosi and other Congressional leaders.

“Corporate immunity is unnecessary to protect small business owners, as state law already protects responsible business owners who act reasonably,” wrote Executive Director Amanda Ballantyne. “Moreover, creating this type of blanket immunity from lawsuits by injured workers or consumers would give bad actors a competitive edge at the cost of people’s lives, adding to the harm that responsible Main Street businesses are already suffering.”

The result, she said, would be a “race-to-the-bottom dynamic that creates unfair competition for businesses concerned about reopening before it is safe to do so.” Businesses would reopen without adequate and potentially costly protections in place because there would be no recourse for worried employees, she contended.

The lawsuit filed Tuesday against McDonald’s in the Circuit Court of Cook County has the support of the Service Employees International Union (SEIU) and an affiliated initiative, the Fight for $15 and a Union. SEIU President Mary Kay Henry has been pushing back against the call for limiting liability, noting that many businesses are still not providing their employees with fundamental protective equipment such as face masks and gloves. In a public statement, she charged that businesses won’t rectify the situation because those at danger have limited recourse.

Henry has characterized a liability shield as “inhumane.”

It is not clear how the McDonald’s suit might progress differently if a liability curb was in place. The action was filed in a county court, and Republicans are looking for federal action. It alleges violation of state standards, and there are currently no federal safeguards mandated for employers.

But it asserts, “The damage done by McDonald’s decisions is not confined to the walls of its restaurants, but instead has broader public health consequences for the Chicago community, the state of Illinois, and the entire country.”

It was also filed at the same time regulatory complaints were filed against McDonald’s units in California for allegedly failing to provide adequate protection against coronavirus. Those actions could result in lawsuits being filed against the chain by the state. 

Yesterday, McDonald’s issued a press statement seemingly addressing organized labor’s criticism of its employee policies. “Our goal: safety first,” reads the headline.

The statement says the brand has made more than 50 safety-related operational adjustments because of recommendations from the Centers for Disease Control and Prevention and state and local health officials. “These include providing wellness and temperature checks, masks and gloves, social distancing guidelines, increased cleanings and installing protective barriers,” McDonald’s said.

 It also notes in the statement that units are being provided with a 59-page “playbook” for reopening safely.

“We disagree with the inaccurate characterizations in the SEIU’s media release, which do not represent the actual realities in our 14,000 restaurants around the country," McDonald's USA said in a statement to Restaurant Business.  "While the SEIU is spending time sharing misinformation, McDonald’s and our 2,000 franchisees are focused on keeping more than 800,000 crew and managers employed in safe environments to serve healthcare workers, first responders and communities during this pandemic." 


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