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Three Steps To Safely And Legally Reopen Stores

  • June 22, 2020 at 8:00 AM EDT
  • By Debbie Hauss
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As retailers reopen stores, many face tough questions about how to spend their limited resources. One of the biggest issues in the balance is: How many employees can we afford to bring back from furlough, while simultaneously investing in the necessary health and safety protocols for every store? If retailers don’t rehire enough associates, they won’t have enough people to service returning shoppers. But hiring too many employees too quickly could drain the funds needed to institute required safety protocols.

Raising the stakes even further are liability issues. Plainly stated, if health and safety requirements are not met, retailers could be facing business-ending lawsuits in addition to government-imposed fines or penalties.

However, adhering to new safety protocols may not be an easy task, according to a recent survey of more than 1,000 in-house counsel, HR professionals and C-suite executives. Many expressed concerns about “the difficulty of ensuring employees follow new safety guidelines, as well as upholding their workplace culture and employee morale while implementing safety measures.” The survey report, titled COVID-19 Return to Work Survey Report, was conducted by the Littler law practice.

As many as 59% of survey respondents are concerned about liability related to unsafe working conditions. “Particularly given the wide-ranging, and often conflicting, guidelines from state and local officials, employers are left to balance multiple logistical, emotional and legal concerns in determining whether, when and how to reopen their workplaces,” said Alka Ramchandani-Raj, a leader of Littler’s COVID-19 Task Force in an interview with Retail TouchPoints.

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3 Steps To Safely — And Legally — Reopen Stores

Retailers need to be aware that “skipping steps or being out of compliance will cost businesses way more in the long run in the form of lawsuits,” according to Adam Kemper, Attorney at Greenspoon Marder in an interview with Retail TouchPoints. “Workplace audits can be devastating and put companies out of business.” And it’s not just the largest businesses that are at risk: “Regardless of size, companies can face lawsuits,” said Kemper. “Workers can contact OSHA and the Department of Labor. There is no excuse to violate laws.”

Kemper outlined three steps needed to legally and safely reopen stores:

  1. Diagram each location to ensure safety protocols are being followed, including social distancing guidelines, appropriate signage, air filtration, ventilation and more. Store design, including the location and placement of products and displays, should be re-evaluated to facilitate social distancing.

  2. Determine which employees to bring back, and why. “If you are not able to bring everybody back, then the selection process of bringing certain people back can be potentially scrutinized for discrimination issues,” Kemper said. “Assume the selection process will be reviewed. The return and selection process needs to be based on business necessity. I recommend that management creates a written plan.”

    Businesses with fewer than 500 employees also need to be aware of the new Families First Coronavirus Response Act (FFCRA), released on April 1. FFCRA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.”

  3. Conduct staff training to reinforce the importance of adhering to safety protocols. Employees need to know that if they do not abide by the new workplace policies, they can be subject to disciplinary action.
    Even if businesses are committed to following the protocols set forth by federal, state and local authorities, employees also need to commit to adhering to those policies, which can differ from state to state and retail business to retail business.

    More than half (58%) of the Littler survey respondents plan to conduct testing or health screenings on employees, with most referring to temperature checks (89%) and symptom screenings (72%), and a small number selecting antibody (8%) and antigen (7%) tests. Yet while the U.S. Equal Employment Opportunity Commission (EEOC) has released some guidance about screening employees for COVID-19, uncertainty remains around implementation, privacy matters and litigation risks.

Recovering And Reopening Can Be A Long Legal Road

Businesses need to be prepared for “the next wave of claims arising from the pandemic,” according to Robin Cohen, Principal at the McKool Smith law firm in an interview with Retail TouchPoints. That next wave may include businesses being sued “for allegedly exposing or unnecessarily increasing the risk of exposure of employees or customers to the coronavirus.  Different states and the federal government are working on liability-shield legislation, but as that takes shape, retailers should be proactive in providing notice of claims made against them or notices of circumstances for claims that could be made before insurers adopt more specifically-tailored virus exclusions in coming policy periods.”

Additionally, many business owners believe they may be able to collect some needed funding for reopening based on losses suffered from COVID-19 within their Business Interruption Insurance (BII) policy, but that has become a highly contested topic.

“Many insurers have been denying coronavirus business interruption claims across the board, arguing the virus does not cause ‘physical loss or damage’ necessary to trigger most business interruption coverage, in addition to relying on virus exclusions in policies that contain them,” according to Cohen. “And some insurers that have not denied claims immediately are inundating their policyholders with onerous requests for information about quantification of losses, confirmation of the presence of the virus, and the effect of government orders.  Many of these requests are phrased in a way to give the insurers ammunition to deny coverage down the road.”

But there could be a silver lining, Cohen explained: “Policyholders may be able to obtain coverage despite exclusions that could encompass viruses, if the causation language in those exclusions is narrow such that policyholders can argue their losses were not directly caused by virus — or if insurers use very broad language that arguably encompasses virus, but the exclusions are more properly read to apply to traditional pollutants or contaminants, not something like coronavirus.”

Free Resources To Help Businesses With Legal Issues Around COVID-19

While it’s important for every business to have a trusted attorney or legal team on board, there also are many free resources available to help educate companies about the ever-changing coronavirus crisis situation. Some of those include:

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