*Disclaimer: This article is not intended to serve as legal advice or to support or oppose COVID-19 related lawsuits.
Millions of Americans have seen their lives and businesses upended by the COVID-19 pandemic. The disruption includes shelter-in-place orders, social distancing, and an unemployment rate that is currently clawing its way back to pre-pandemic numbers. At the same time, employers across the country are facing a wave of lawsuits by employees claiming they contracted COVID-19 because of gross negligence. This trend has led lawmakers to propose legislation that would provide businesses liability protections during the pandemic.
Recently, a bill co-sponsored by U.S. Senator John Cornyn (R-Texas) and U.S. Senate Majority Leader Mitch McConnell (R-Kentucky) has made its way through the halls of the Nation's Capitol. The Safe to Work Act (Senate Bill 4317) would provide substantial and comprehensive liability protection from coronavirus-related claims for businesses, educational institutions, nonprofit organizations, health care providers, and employers. A considerable amount of work lies ahead before a final piece of legislation is signed into law; however, private industries continue to provide input to ensure the bill contains appropriate safeguards for businesses
To date, over 2,000 COVID-19 related lawsuits have been filed across the U.S. Daycares, healthcare companies, airlines, hotels, cruise lines, and retailers are just a few of the industries who are facing allegations of mismanagement and are likely to see additional legal action.
One of the first major U.S. retailers sued due to gross-negligence or wrongful death since the pandemic began unfolding in March is Walmart. In short, the family of a Walmart employee who passed away claims the deceased contracted the virus while on the job and that the employer acted in a negligent manner by not following U.S. Center for Disease Control (CDC) guidelines. While a plaintiff's claim can be difficult to prove, often they can point to an outbreak at the place of business as a potential for how the employee contracted the virus.
Similar lawsuits claim employers distributed misinformation; however, counterarguments point to the fact that safety recommendations from health and local officials for items such as face masks has shifted over the course of the pandemic. Businesses have also seen a spike in COVID-19 related lawsuits related to furloughs, reductions in workforce, and leave requests protected under the Families First Coronavirus Response Act (FFCRA).
Convenience retailers should be aware of how COVID-19 related lawsuits can affect their business and have a plan in place to address them should they arise. Creating and enhancing existing task forces to address COVID-19 related issues can help companies manage employees, customers, and contractors who grow fatigued with using personal protective equipment (i.e. masks, gloves, face shields) and social distancing.
Because the pandemic has become politicized, as time passes conflicts may arise when reminding employees and customers to adhere to public health and safety recommendations. According to Statista, a global business data platform, the average convenience store contains 2,400 sqft of indoor space. Limited space can create issues when trying to control capacity and socially distance. Convenience retailers should take of note of where traffic jams occur in the store. Customers tend to congregate outside a store front, at checkout lines, near bathrooms, and next to beverage and food stations. A well laid out design that includes markers, barriers, and hand sanitizing stations can help ensure create consistency and project a sense of safety. The forecourt provides a great opportunity to use stickers or digital screens to remind customers to practice good hand hygiene, remind them to wear masks when entering the store, and promote company health safety measures.
If you have been in the convenience retail business for any length of time, you are aware of the high employee turnover rate. This can be a challenge for implementing a COVID-19 safety plan; however, it is not impossible and should be a top priority. Designating an employee to take charge of safety protocols during business hours should be done in addition to those who are developing the strategy behind the scenes. A well-thought-out plan can help maintain consistency across employee and customer experiences while also making it easier to shift responsibilities to new employees.
To help defend against COVID-19 related lawsuits, convenience retailers must stay on top of changes in federal, state, and local policies and recommendations. The best defense against a gross negligence claim is to show how you were not negligent. How? By showing you were using every bit of effort to stay compliant and knowing where to find guidance and how it changes. Convenience retailers should focus on training and retraining on these issues to avoid employee-customer conflict and ensure consistent messaging.
As the pandemic continues to evolve, a clear line of communication is key. Studies show that when employees hear from company leaders and management, it can help dramatically build trust among staff by expressing a team mentality. As a bonus for management, it helps reduce risk by creating a sense of accountability and lets employees know that the company is monitoring their actions.
The livelihood of convenience retailers is on the line. Convenience stores are good community stewards and play a critical role in ensuring life can one day resume as normal. As an industry, convenience stores must make every effort to implement a comprehensive safety strategy and comply with guidelines to shield their business against COVID-19 lawsuits and protect the well-being of their employees and customers.
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