Changing virus guidance creates balancing act for essential employers

The coronavirus pandemic has created constantly changing safety challenges for employers operating businesses considered essential, such as grocery stores, delivery companies and food-processing plants, experts say.

The sometimes conflicting guidance being released by government agencies, calls from businesses and employee groups for elevated protections, and unknown liabilities have created a balancing act for employers trying to operate and protect their workers, they say.

“Retailers are operating on thin resource margins, moving very fast to meet customer needs … and being hit from the public safety side and all of the federal, state and local orders that are coming into play,” said Cressinda Schlag, an associate in the Austin office of Jackson Lewis P.C., who formerly worked as in-house counsel for Whole Foods Market Inc. “I think it’s a bit of a balancing game.”

The U.S. Occupational Safety and Health Administration and the U.S. Centers for Disease Control and Prevention have released multiple pieces of guidance for essential workers in the past month directing employers on best practices and how to deal with employees exposed to the virus. A handful of lawsuits have been filed by the families of grocery store and big-box retail workers who died after contracting COVID-19, alleging that the stores failed to adequately protect workers from the virus.

“It’s obviously an unprecedented situation that we’re in, and people are doing the best they can … having to cobble together plans and (personal protective equipment),” said Ashley Brightwell, partner in the Atlanta office of Alston & Bird LLP.

Several large retailers, including The Kroger Co. and Albertsons Cos., have teamed up with unions to ask federal and state officials to designate their workers as “extended first responders” to ensure they have access to personal protective equipment such as masks and gloves and prioritized coronavirus testing. A handful of states have included grocery store workers among those with access to emergency childcare, including Colorado, Maryland, Massachusetts, Michigan, Minnesota, New Jersey and New York.

Meanwhile, Kentucky and Illinois have released orders offering enhanced workers compensation benefits to these workers for on-the-job exposure to or acquisition of COVID-19.

On April 15, OSHA released guidance for retailers such as grocers to better protect their employees that included encouraging employees to wear masks, installing plastic-glass partitions and implementing hand-washing breaks every hour for workers.

Installing “sneeze guards” between the cashier and the customer provides retail workers with a small measure of safety and security, said Celeste Monforton, a lecturer in the department of health and human performance at Texas State University in San Marcos, Texas.

While some retailers are doing a “great job” — by limiting customers, creating one-way aisles, directing customers where to stand, placing shields and even Plexiglas boxes around cashiers and baggers, and providing masks and gloves — others have been “slower to implement protections,” she said.  

Retailers need to go beyond passing out gloves and masks, Ms. Schlag said.

“PPE comes with a ton of its own compliance obligations,” she said. “You have to make sure it’s in good condition, inspect it, replenish it. There’s a big issue with giving someone a mask and gloves and not fully training them on how to use it, because they could actually become exposed to COVID-19 through not using it properly.”

Essential retailers aren’t the only ones receiving new guidance and pushback over safety protections from worker advocates. On Thursday, OSHA released guidance for the manufacturing sector, which includes food processors, offering strategies to prevent the spread of coronavirus.

Coronavirus outbreaks and deaths have been reported among workers at multiple food-processing plants around the country. In late March, workers at a poultry plant in Georgia walked off the job, citing possible exposure to COVID-19. Tyson Foods Inc. closed one of its Iowa pork processing plants April 6 after a reported outbreak, and Smithfield Foods Inc. announced April 12 that it would close its Sioux Falls, South Dakota, pork processing facility after news outlets reported that as many as 600 of the plant’s workers had contracted COVID-19.

“It’s really important for these workers to have more protection than the general public,” Ms. Monforton said. “If facilities are providing inadequate protection or the bare minimum protection, it puts the community at risk. I think it’s really important for companies to be specific and transparent about what’s going on in each of their individual plants.”

OSHA’s manufacturing guidance recommends that companies stagger shifts, maintain distances of six feet between employees if possible, allow workers to wear masks and provide training on the proper donning and doffing of personal protective equipment and clothing.

Manufacturers are also urged to promote personal hygiene and provide alcohol-based hand rubs of at least 60% alcohol if handwashing access is not available and provide disinfectants and disposable towels for employees to clean work surfaces, according to the guidance.

“I’ve been recommending to clients that they absolutely follow the CDC guidelines (on COVID-19 cleaning protocols) and put in new policies and procedures that follow those to the letter,” Ms. Brightwell said.

Implementing the different types of controls can reduce liability and demonstrate to OSHA that the employer has made a good-faith effort, Ms. Schlag said.

“When the dust settles, I think there will be a push to have permanent rulemaking either at the federal level or more broadly at the state level to require companies to put into place some kind of planning around pandemics and infectious disease,” Ms. Schlag said. “Having those ahead of time might have helped with managing situations like this.”