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USA: Six Steps for Retailers to Take Now and Important Guidance to Review

As of March 10, 2020, the World Health Organization reports 113,702 confirmed cases of COVID-19 across the globe and 4,012 deaths, the majority of both which arise out of China. These numbers outside of China are greatly increasing, however, as the WHO reports outside of China there are 32,778 confirmed cases and 872 deaths impacting a total of 109 different countries or areas. In the United States, so far the Centers for Disease Control and Prevention (“CDC”) has confirmed that as of March 10, 2020, there are 83 travel-related COVID-19 cases and 36 cases of person-to-person spread.  The CDC also reports 528 cases currently under investigation. That said, the CDC has stated there may be a discrepancy between CDC reported cases and cases reported by state and local health departments, the latter of which should be considered the most up to date given local testing.

Many details about the virus are unknown, including its severity and how it spreads, leaving the public with many questions about how to appropriately respond. In many public health emergency and outbreak situations, healthcare workers are often the most dramatically impacted by outbreaks. However, COVID-19 has been directly impacting the retail industry and consumer behavior in countries experiencing community-based outbreak.

In China, for example, retailers have been impacted by consumer activity changes, employer/employee behavior, and supply chain interruption. For instance, a mandatory quarantine required major retailers to temporarily close retail store locations, some of whom have reported a reduction in first quarter forecasts. On the flip side, online grocery and similar delivery services have reportedly grown. In addition, some retailers have been offering contactless pick up options and specially packaged delivery services that limit human contact, such as drop off locations and use of drones or driverless vehicles. Whether employees can get to work or actually work, however, has been a challenge in the impacted countries given quarantines, restrictions, changes in routes, and illness.

To keep abreast of developments, retail employers should review guidance from the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and for those in California–CAL OSHA (California’s Division of Occupational Safety and Health), and the State Department, to know the facts and recommended preventative and other actions.  It is key for retail establishments to have a plan in place and/or consider the status of current plans, particularly given both governmental agencies’ and President Trump’s recent warning to prepare for community-based outbreaks in the US.

From a general employer perspective, if a plan is not already in place, it is important to take action now. Retail employers with multi-national operations must also consider minimizing health and safety risks and managing employee anxiety, while at the same time meeting business obligations.

The CDC provides detailed steps to take now. The CDC’s recommendations fall under six main recommendations:

  1. Actively encourage sick employees to stay home. Employees with symptoms of acute respiratory illness should stay home and not report to work until they are fever- and symptom-free for 24 hours. The CDC encourages employers not to require employees who have an acute respiratory illness to present a doctor’s note to validate their illness or to return to work because medical facilities may be overwhelmed. Although not legally required, we recommend employers carefully consider whether this approach is appropriate in their workplaces, and that the process (if an exception) is handled consistently. Further, since retail establishments are gathering places, keeping sick employees at home is critically important to reduce person-to-person transmission. In addition, employers should identify what positions would be appropriate for telecommuting, so if telecommuting becomes an issue, it is handled consistently.
  2. Separate sick employees. Employees who appear to have acute respiratory illness symptoms (i.e., cough, shortness of breath) should be isolated from other employees and sent home immediately.
  3. Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees. The CDC provides links to posters that encourage employees to stay home when sick, cough and sneeze etiquette, and hand hygiene and recommends that employers put posters at the entrance to the workplace and in other work areas. The CDC also encourages employers to provide tissues, no-touch receptacles, and hand sanitizer, which retailers should likewise mirror for establishment in multiple locations, particularly points of entry and exit. Moreover, the CDC recommends that employers place instructions on handwashing and use of hand sanitizer, which are simple measures that retailers may also do in public areas and restrooms. In addition, sick and other leave policies should be assessed to ensure they motivate reduction of person-to-person transmission.
  4. Perform routine environmental cleaning. The CDC recommends routine cleaning of all frequently touched surfaces and that employers provide disposable wipes so that commonly used surfaces such as doorknobs can be wiped down by employees before each use. The CDC does not recommend any particular cleaning product or additional disinfection beyond routine cleaning at this time. Retailers should consider increasing their routine cleaning schedules to minimize any possible residual contamination.
  5. Advise employees to take certain steps before travelling. Employees should check the CDC’s Traveler’s Health Notices for each country before travelling and not travel if they have symptoms of acute respiratory illness. Employers should also make sure that employees know what to do and who to contact if they become sick while travelling.
  6. Additional Measures. The CDC recommends employees who have a sick family member at home with COVID-19 “should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.”

With regard to this last point, the CDC published an extensive guidance on conducting a risk assessment and associated recommendations in its Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential 2019 Novel Coronavirus (2019-nCoV) Exposure in Travel-associated or Community Settings.  Similarly, OSHA identifies important but commonsense practices for all workers and employers to help prevent worker exposure to COVID-19.

Employers who are concerned that an employee(s) may have been exposed to the virus should consult the CDC’s risk assessment. This guidance addresses various potential exposures scenarios and identifies four exposure risk categories: (1) High Risk, (2) Medium Risk, (3) Low Risk, and (4) No Identifiable Risk. Based on these exposure risk categories, the CDC provides recommendations for exposure risk management, including appropriate restrictions on public activities (including workplaces), medical evaluation and travel restrictions all depending on whether the individual has symptoms of COVID-19.  Employees who live in the same household as someone with confirmed COVID-19, for example, could fall under either “high risk” or “medium risk” depending on the circumstances. Individuals who are “high risk” should be quarantined (voluntary or under public health orders) for 14 days. For employees who fall under the “medium risk” category, as long as they have no symptoms, the CDC generally recommends that for 14 days they avoid areas where people congregate. We caution, however, that these are complex decisions that must be considered carefully in the context of the workplace and multiple layers of legal and other considerations.

In its Guidance for Businesses and Employers, the CDC also recommends that all employers plan for a potential outbreak of COVID-19 in the US and be prepared to implement strategies to protect their workforce while ensuring continuity of operations, particularly important in certain aspects of the retail industry. Planning for a potential outbreak includes identifying and communicating objectives such as “(a) reducing transmission among staff, (b) protecting people who are at higher risk for adverse health complications, (c) maintaining business operations, and (d) minimizing adverse effects on other entities in their supply chains.”

Going forward, retail employers must continue monitoring information coming from state and local health departments, as well as governmental agencies so you are armed with the facts and preventative solutions. Given that this is a rapidly evolving situation, all information in this update is subject to change.

There are also a few practical considerations specific to retailers that require a thoughtful and fact-specific analysis. For instance, if an employee refuses to come to work, the absence may be treated as any other absence under the employer’s policies, unless the employee can identify a specific risk. With regard to absences, however, be cognizant of the possible implication of the ADA and whether the interactive process and/or a reasonable accommodation would be appropriate.

For employees with customer-facing positions, absent a specific risk identified by the employee that would implicate the ADA and interactive process as noted above, the employer can prohibit wearing a mask if doing so is not consistent with policy and/or presentation that the employer wishes to portray to the public; and, refusal to work without a mask could be addressed under the employer’s policies so long as the reason to wear a mask does not involve ADA and/or accommodation concerns. Finally, if employee tries to conceal concerns about having COVID-19, and the employer has reason to believe the employee may have been in close contact and/or exposed, then the employer may consider 1) asking the employee to stay home for the 14-day incubation period, and 2) working in concert with local and state health departments. However, employers should be mindful of sick leave and wage and hour laws in their respective states. However, if a customer or vendor arrives and appears to be sick, an employer needs to walk the fine line of protecting its employees, and yet not making assumptions as to the nature of the vendor/customer’s illness and likewise avoid national origin or other types of discrimination claims. Moreover, to complicate matters, it is of course still cold and flu season, and allergy season is beginning, so perceived symptoms could be wholly unrelated to COVID-19. Any decision to inquire about a visitor’s health must be consistently applied and in a non-discriminatory manner, such as by fully vetted questions or questionnaires to demonstrate consistent and non-discriminatory inquiries. Further, consider whether there are means to accommodate the customer such as providing masks or the opportunity to limit interaction with others in retail facility (by for instance, retrieving items for the customer and/or establishing a pick up location).

To better support clients as they respond to this challenging public health issue, Jackson Lewis has established a dedicated “Coronavirus” team that is continuously assessing risks, preparing employee communications, and providing practical advice on the workplace compliance issues flowing from coronavirus workplace concerns and the travel restrictions and new facts we are continuing to learn about COVID-19.

By Dorothy D. McDermott and Tara Burke


For more information on these articles or any other issues involving labour and employment matters in the United States, please contact John Sander (Principal) of Jackson Lewis at John.Sander@jacksonlewis.com or visit www.jacksonlewis.com.