February 9, 2023

Volume XIII, Number 40


February 08, 2023

Subscribe to Latest Legal News and Analysis

February 07, 2023

Subscribe to Latest Legal News and Analysis

February 06, 2023

Subscribe to Latest Legal News and Analysis

Responding to COVID-19 Concerns as a Retailer

The COVID-19 pandemic is challenging retailers in ways unique to the business. Not only do they have to ensure the health and safety of both customers and workers with effective strategies, they are struggling with managing the changing state and local business restrictions, pervasive staffing changes, and unanticipated supply chain shortages.

Many retailers have consulted with government agencies, health experts, and retail industry association groups on how to address unanticipated challenges to retail operations. Guidance from the U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) confirms that retailers have a medium-level risk for exposure to COVID-19, as they have frequent and close contact with the general public. However, the guidance provided to date leaves many questions unanswered.

OSHA Guidance

To date, OSHA’s primary recommendation to retailers for managing potential COVID-19 exposures has been to install engineering controls where possible to minimize employee contact with the public. See OSHA’s Guidance on Preparing Workplaces for COVID-19.

In application, this means retailers should consider:

  • Installing clear plastic barriers, such as sneeze guards, between workers and customers; or

  • Implementing procedural mechanisms for workers to avoid face-to-face contact, such as through phone-based communication or online ordering.

OSHA also has recommended that retailers keep customers informed about COVID-19 symptoms and ask them to remain at home if they feel ill, as well as limit customer and public access to retail facilities to the extent possible.

Issues Not Addressed

OSHA’s guidance does not, however, address some of the health and safety challenges occurring at retail locations as an indirect result of the COVID-19 pandemic. These challenges include how to:

  • Provide and document effective health and safety training for rapidly changing workforces;

  • Ensure accurate recording of COVID-19 cases where there is objective evidence of work-relatedness (e.g., employees working closely together develop COVID-19 without an alternative explanation);

  • Minimize risks to workers posed by aggressive shopping (e.g., fights between customers over items and consumer stockpiling) and customer conflicts; and

  • Overcome the effects on worker safety performance and awareness caused by stress, anxiety, and sleep disturbances.

Retailers may further be challenged by high incidents of worker absenteeism, resulting in general discord, employees having responsibility for new or significantly changed tasks, and tasks being completed in a rushed or hurried manner.

What Retailers Can Do

Retailers should evaluate carefully how their operations are changing in light of the COVID-19 pandemic and determine whether additional health and safety measures are needed (e.g., protective barriers, changes in customer contact, or increased cleaning and sanitation procedures).

Retailers also should consider whether their health and safety program, and corresponding training, need to be modified in substance or in how it is conducted (e.g., online training vs. classroom setting), to address recent changes in operations and potential health and safety hazards the can occur as an indirect result of the COVID-19 pandemic.

Some considerations for retailers’ health and safety programs include:

  • Adopting procedures that allow for social distancing, such as minimizing workplace access points, creation of job rotations or staggered shifts to reduce workplace capacity, and reduced use of shared facilities;

  • Incorporating fit-for-work screening methods to identify high-risk workers before they enter the workplace and strategies for limiting potential exposures through face-to-face contact;

  • Implementing mechanisms for communicating effectively to employees and customers on evolving procedures and practices, as well as to respond to questions and concerns;

  • Providing facility-specific cleaning, disinfection, and sterilization procedures;

  • Identifying and implementing feasible engineering controls to protect employees and customers, such as installation of physical barriers, increased ventilation, and use of high-efficiency air filters; and

  • Making adjustments in operational and management procedures for HVAC equipment to ensure equipment is cleaned, maintained, and operated in a way that reduces exposure risks.

Special thanks to Dr. Shannon Magari, who contributed to this article.

Jackson Lewis P.C. © 2023National Law Review, Volume X, Number 107

About this Author

Francis P. Alvarez, Jackson Lewis, Health Care Management Attorney, Injured Workers Lawyer

Francis P. (Frank) Alvarez is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He is the Leader of the Disability, Leave and Health Management Practice Group, which assists employers in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees.

Counseling hundreds of employers each year, Mr. Alvarez spearheads the firm’s effort to provide imaginative and creative solutions to the complex array of workplace disability and health management issues...

Tressi Cordaro, Occupational safety health attorney, Jackson Lewis, enforcement agency lawyer, labor litigation legal counsel

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested...

Patricia Anderson Pryor, Class Action, Litigator
Principal and Office Litigation Manager

Patricia Anderson Pryor is a Shareholder in the Cincinnati, Ohio office of Jackson Lewis P.C. Ms. Pryor is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

She represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented...

Cressinda Schlag Environmental Health Lawyer Jackson Lewis Austin

Cressinda (“Chris”) D. Schlag is an associate in the Austin, Texas, office of Jackson Lewis P.C. Her practice focuses on environmental health and safety matters involving legal and regulatory compliance as well as federal and state government enforcement actions.

Before becoming an attorney, Ms. Schlag obtained a graduate degree in occupational health and safety and environmental management and worked as an environmental health and safety engineer and consultant with a variety of industries, including, for example, oil and gas, chemicals manufacturing and...

Richard D. Landau Principal New York Metro Labor and Preventive Practices Workplace Training

Richard D. Landau is a Principal in the White Plains and Albany, New York, offices of Jackson Lewis P.C. He has represented employers in all aspects of labor law and has extensive experience providing employers with strategic advice related to union organizing, negotiations, handling arbitrations and in proceedings before the National Labor Relations Board.

He has negotiated hundreds of collective bargaining agreements in dozens of industries including complex contracts covering over 1,500 employees, and handled over 100 arbitrations running the full gamut of...