McDonald's restaurant located at 2438 W. Cermak Rd., Chicago Illinois.

Despite an impassioned plea from a McDonald's lawyer, a Chicago judge refused on Wednesday to dismiss a class action alleging the restaurant chain was creating a public nuisance by failing to protect its workers from COVID-19.

The lawsuit, brought by five employees and four people who live with them, is among the few cases to ask a judge to force a business to provide adequate COVID-19 protection to its workers. Following a hearing held via Zoom, and broadcast live on YouTube, Cook County Circuit Court Judge Eve Reilly refused to grant a motion brought by McDonald's to dismiss the case.

"The plaintiffs allege the regulations are not being followed. Defendants claim that they are," she said in an oral ruling, also broadcast on YouTube. "This is a factual dispute that involves credibility determinations, which the court is very well suited to handle."

Jonathan Bunge, co-chairman of the National Trial Practice Group at Quinn, Emanuel, Urquhart & Sullivan, had argued at the hearing that the plaintiffs should have turned to government agencies in charge of handling the pandemic, not hauled his client into court. Those agencies, he said, had primary jurisdiction over the matter.

"This case is extraordinary in the sense that they're not only asking you to intervene in a public health crisis solely in the discretion of the agencies, but they haven't said anything to these agencies at all," said Bunge at the hearing.

He admitted he was "incensed" that the matter was in court.

"These people in these restaurants are trying to work with the agencies and develop an effective response," he said. "They're doing the best they can, but this is an evolving situation that changes by the minute. It's a crisis that is unprecedented."

In her ruling, however, the judge concluded that she had jurisdiction over the dispute.

"The court has no cause to abdicate its judicial function even if the remedy could be found in administrative bodies," she said. "The plaintiff has alleged a public nuisance based on the very contagious COVID-19 pandemic. Applying the laws set forth by our Illinois Supreme Court, primary jurisdiction is not an affirmative matter that defeats the plaintiffs' claims. Therefore, this motion is denied."

In an emailed statement, McDonald's USA said it was disappointed in the ruling.

"We continue to believe that the regulatory agencies are better suited to interpret and enforce the regulations related to COVID-19 than the courts," the company said. "However, we are confident that the Judge will determine at the evidentiary hearing that plaintiffs' claims are without merit."

The restaurant chain noted that it was enforcing the "safety protocols in question in this lawsuit" at its 14,000 restaurants nationwide, including social distancing, temperature checks, protective barriers, gloves, masks, and frequent hand washing.

"We're pleased the court has denied defendants' motion to dismiss and ruled that it will hear plaintiffs' claims that the defendants created a public nuisance by failing to protect workers and the public from COVID-19," said plaintiffs lawyer Danny Rosenthal of James & Hoffman in Washington, D.C., in a statement. "We look forward to presenting our evidence at the upcoming preliminary injunction hearing."

Reilly has scheduled an injunction hearing for Thursday,

The lawsuit, filed on May 19, alleged McDonald's failed to supply enough masks and hand sanitizer to employees at the four Chicago locations, or inform them when co-workers got COVID-19.

On Friday, Reilly had planned to hear arguments on the plaintiffs' injunction request. Instead, she ordered lawyers into "break-out" rooms to resolve their dispute.

McDonald's filed a motion to dismiss the lawsuit on May 28, insisting that the matter, under the doctrine of primary jurisdiction, belonged before the federal Occupational Safety and Health Administration, or the Illinois Department of Public Health or the Chicago Department of Public Health, which have authority over pandemics.

At Wednesday's hearing, Reilly asked why she could not craft an injunction order that would force McDonald's to comply with the guidance issued by Illinois Gov. J.B. Pritzker.

Bunge said that would result in conflicting guidance for McDonald's, which has other locations in Illinois. He noted that the guidance, which is not mandatory, already varies between Illinois authorities, which have required employees to wear masks when taking drive-thru orders, and the Centers for Disease Control and Prevention, which has not.

"It's really not that hard to figure out," the judge replied.

Bunge disagreed, noting that in March, there was guidance not to wear masks.

"Every day, if not every hour, the reaction and knowledge of this disease, this pandemic, which is unprecedented, changes," he said.

McDonald's is relying on the few rulings that, in addressing COVID-19 protections for workers, have deferred to the jurisdiction of governmental agencies. On March 31, a judge in Anchorage rejected a temporary restraining order sought by the Alaska State Employees Association, and, on May 5, a federal judge in Missouri tossed a public nuisance case against Smithfield Foods brought on behalf of workers at a Missouri meat plant.

But those cases weren't in Illinois, where cases that deferred to government authorities have not involved public nuisance. Reilly cited rulings in those Illinois cases in her decision not to dismiss the case on Wednesday.

At the hearing, she said the fact that the case asserted public nuisance made it better positioned to be in court.

"Isn't that more reason for the court to be involved given the fact it could create a public nuisance?" she asked Bunge.

Rosenthal made a similar argument at the hearing.

"When there's a claim of ongoing harm to public health, or imminent harm to public health, courts have said in Illinois they will take that on and address that," he said. "If someone's going to be told they have to stay in their house, that's a matter for IDPH. It's not a general statement that they should control everything related to public health."

Rosenthal also noted that, unlike the case against McDonald's, OSHA was investigating the Smithfield Foods plant and President Donald Trump had issued an executive order to keep meat processing facilities open.

As for why his clients did not raise complaints with governmental agencies, Rosenthal insisted that such an attempt would be futile. He said no one is doing inspections of restaurants that address COVID-19 protections, since OSHA is prioritizing health care facilities and Illinois authorities have conducted only routine health inspections.

"This is a situation where there are thousands and thousands of restaurants and other businesses in Chicago, presumably all facing issues like this," he said. "These agencies are not equipped to handle that."