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Grocery stores run gauntlet of pandemic regulations

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As essential businesses that never shut down, grocery stores must comply with myriad federal, state and local regulations to keep workers safe from COVID-19. The task is anything but simple, experts say.

“For most of the industry, across the board among grocery retailers and wholesalers, this is an area under attack right now” when it comes to compliance issues, said Brandon Takahashi, Los Angeles-based partner with Fox Rothschild LLP.

The issue was highlighted earlier this month when the California Department of Industrial Relations fined five Los Angeles-area grocery stores, all part of chains owned by Cincinnati, Ohio-based Kroger Co., a total of $104,380. The agency issued citations for violations including not updating workplace safety plans and training, failing to timely report COVID-19 deaths, and failing to install barriers between workers and customers. Kroger did not respond to requests for comment.

The citations came on the heels of the U.S. Occupational Safety and Health Administration’s announcement of an Oct. 13 public meeting about potential whistleblower violations in the health care and retail industries, mostly pertaining to COVID-19 complaints. Federal regulators say such overall whistleblower complaints have increased 30% this year, including a surge of more than 3,000 related to the pandemic. In California, most of Cal/OSHA’s inspections came from complaints, according to citation data.

“As with all businesses, grocery stores face the challenge of keeping pace with a proliferation of city, county and state regulation, legislation, and executive actions and ordinances,” said John Dony, Itasca, Illinois-based director of the Campbell Institute, which conducts research for the National Safety Council. “Grocery operations, which by nature tend to be multi-facility and span across numerous jurisdictional borders, face unique challenges in this regard.”

Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP, said grocery stores, like health care settings, were forced to change business practices immediately in the pandemic as “they are as essential as it gets” and will continue to see new regulations.

“What they are doing is so vital to our nation,” he said, adding that the industry “has done extremely well in the crisis.”

“The industry was one of the first to get creative with engineering controls” such as building protective barriers between clerks and customers before federal regulators required them, he said. Yet, managing safety continues to be a “big challenge,” he added.

The challenge is federal regulators such as OSHA and the Centers for Disease Control and Prevention aren’t the only entities issuing regulations pertaining specifically to grocery stores.

In Los Angeles County, for example, ordinances introduced in recent months — calling for such practices as hygiene training and mandatory breaks — are piggybacking on those introduced by city governments in the county, as well as state and federal regulations, said Brian Casillas, an associate in the Los Angeles office of Fox Rothschild.

“It’s difficult to know the ever-changing landscape. … The one thing we are advising clients is to have someone dedicated to pair up with legal counsel to sign up (for blogs and newsletters) for daily changes,” he said. “There’s a little bit of a lack of streamlining” with various requirements imposed by several governing bodies.

On top of compliance concerns, grocery stores continue to face issues such as personal protective equipment shortages, which have been experienced in other industries including health care, and environmental controls, such as managing customer practices in the store, Mr. Conn said. “The masks … that’s where we are seeing the surge in whistleblower activity,” he said, noting that some jurisdictions have tasked workers with making sure customers are wearing masks.

Enforcing such regulations can put workers in harm’s way, experts say.

Stores must “stay compliant with respect to their own workforce, but they must additionally adhere to regulations and/or guidance affecting interaction with the general public and their customers,” Mr. Dony said. “As we’ve seen, this has led to a number of instances of workplace violence, necessitating a re-focus on de-escalation training and other solutions.”