Employees of a California McDonald’s franchisee recently filed a state-court lawsuit requesting injunctive relief and damages for public nuisance, unfair and unlawful business practices and violations of employment laws. The plaintiffs include four individuals who claim to have contracted COVID-19 and unknowingly spread the disease to their family members and others. The complaint alleges that many of the franchisee’s employees tested positive for COVID-19 and the franchisee failed to take proper precautions to prevent infection and contain transmission once employees tested positive. Those alleged failures include:
- instructing symptomatic workers to continue reporting for work;
- not adopting social distancing measures;
- not providing workers with proper PPE; and
- not sanitizing work stations and high-touch surface areas.
If true, given the extensive state and federal government regulations issued by various agencies, the above would seem to be obvious failures on the restaurant’s behalf. The California lawsuit should be instructive and serve as a reminder to Ohio restaurants and bars. While the State of Ohio has reopened, it is important to remain vigilant in implementing the required procedures and protocols. Employers may face liability claims if patrons and/or employees become infected and the employer failed to follow the State of Ohio’s orders.
Claims for COVID-19 workplace exposure will likely mirror those relied upon by the California employees. In addition to ordinary negligence theories, Ohio and federal statutory violations related to sick leave and safe workplaces standards may apply as well.
Ohio bars and restaurants can protect themselves by complying with the state’s mandates. The hospitality industry has been hit harder than most by COVID-19. The additional restrictions put in place for the remainder of the pandemic will likely cause many in the industry to struggle to survive. While compliance comes at an added immediate cost—cutting into already thin margins and affecting financial health—compliance will provide a defense against any future claims. Although painful, it is important to remember that now is certainly not the time to cut corners on mandated requirements. The PPP loan program instituted by the CARES Act is designed to provide restaurants and bars with the financial resources to survive. It cannot prevent a crippling claim or bad publicity—that is left to the wisdom of restaurant and bar owners and managers.
The best advice is to implement common social distancing requirements, provide workers with proper personal protective equipment, and maintain a clean restaurant and bar. Listen to your employees and have a solid safety protocol in place. Several Ohio restaurants have already seen the social media backlash of “seeming” non-compliance with the “new COVID-normal”.
If you’d like to discuss implementing more safety measures and maintaining compliance to protect against a claim or loss of business, feel free to give Jim Sammon a call at (216) 736-7235 or send him an email at JPSammon@kjk.com or contact Kyle Stroup at (216) 736-7211 or by email at KDS@kjk.com.