April 27, 2020 | by Amelia Taylor, Senior Associate
As the number of those infected with COVID-19 continues to rise and worker deaths increase, grocery-store clerks have increasingly been referred to as the new front-line workers in the coronavirus crisis.1 Recently, the Occupational Safety and Health Organization (OSHA) issued several industry specific alerts providing COVID-19 guidance for certain critical industries including retail workers, package delivery workers, warehouse workers and construction workers.2 One of these alerts, which provides employers in the retail industry with specific industry guidance for reducing worker exposure to COVID-19, will be discussed in this article.
The April 8, 2020, COVID-19 Guidance for Retail Workers provides nine recommendations including: 1) encouraging workers to stay home if sick; 2) providing a place for workers to wash their hands or providing alcohol based hand wipes containing at least 60 percent alcohol; 3) regularly cleaning and disinfecting surfaces and equipment with Environmental Protection Agency approved cleaning chemicals from EPA List N (Disinfectants for Use Against SARS-CoV-2) or those containing label claims against the coronavirus; 4) practicing social distancing by maintaining six feet between co-workers and customers, where possible, demarcating six foot distances with floor tape in checkout lines, and in workplaces where social distancing is a challenge, considering innovative approaches, such as opening every other cash register, temporarily moving workstations or installing plexiglass partitions; 5) using drive-through windows or curbside pick-up; 6) providing workers and customers with tissues and trash receptacles; 7) training workers on proper hygiene; 8) allowing workers to wear masks; and 9) encouraging workers to report health and safety claims.3
This April 8th Guidance expands on the OSHA’s March 9, 2020 Guidance on Preparing Workplaces for COVID-19.4 The March 9, 2020 Guidance on Preparing Workplaces for COVID-19 details specific steps that all employers can take to reduce their workers’ risk of exposure to COVID-19 and classifies risk of worker exposure to the virus according to four categories: very high, high, medium, and lower risk. Grocery store workers would fall into the medium exposure risk category, which includes jobs that “require frequent and/or close contact with (i.e., within 6 feet of) people who may be infected with SARS-CoV-2, but who are not known or suspected COVID-19 patients.” However, the May 9, 2020 Guidance and April 8, 2020 Guidance are only advisory. They are not standards or regulations, and thus do not create any new legal obligations or alter any existing OSHA standards. Currently, there is no OSHA standard dealing specifically with COVID-19.
While there is no specific OSHA standard dealing with COVID-19 protections for grocery store workers, or any other workers, there are existing OSHA provisions that could potentially be applicable in the supermarket setting. These include:
- The OSH Act’s General Duty Clause which requires that each employer, “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” See, 29 §U.S.C 654(a)(1).
- OSH Act Personal Protective Equipment (PPE) Standards which require using gloves, eye and face protection, and respiratory protection when job hazards warrant it. See, 29 CFR 1910.132 and 29 CFR 1901.133.
- The OSH Act regulations that require employers to record and report work-related fatalities, injuries, and illnesses. See, 29 CFR Part 1904 et seq.
- The OSH Act’s Anti Retaliation provision, which provides that no employer shall discharge or otherwise discriminate against any employee because the employee has filed a complaint related to the Act, instructed a proceeding under the Act; testified under the Act; or exercised on his own behalf or on behalf of others any right afforded by the Act. See, 29 U.S.C §660 (c)(1).
Nevertheless, some believe that this is not enough and have called for OSHA to issue an Emergency Temporary Standard (“ETS”).5 Section 6(c) of the OSH Act gives OSHA the authority to issue an ETS under certain circumstances, including where “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and an emergency standard is necessary to protect employees. See, 29 U.S.C. 655(c). An ETS would take effect immediately after publication in the Federal Register and remain in effect until superseded by a permanent standard.
In addition, State Governors in heavily impacted states have begun issuing their own executive orders to fill the void. For example, on April 8, 2020, New Jersey Governor Phil Murphy signed Executive Order No. 122, which outlines sweeping policies and protections for essential retail, manufacturing, and warehousing businesses.6 Violations of Executive Order No. 122 are punishable as a disorderly persons offense and violators are subject to fines of up to $1000 per offense, 6 months in prison, or both. Also, on April 12, 2020, New York Governor Andrew Cuomo signed Executive Order No. 202.16, which provides that essential business employers must, at their expense, provide their employees with face coverings to be worn when interacting with customers or members of the public.7 In addition, Connecticut Governor Ned Lamont signed Executive Order No. 7N, requiring essential retail businesses to take reasonable measures to ensure that customers maintain six feet of distance between them, while in the store and while waiting to enter, and employ touchless payment technology where available.8 Executive Order No. 7N further prohibits essential retail businesses from requiring employees to bag items in reusable bags provided by customers.9
In the weeks and months ahead, employers in this area should continue to look for additional OSHA guidance in this area and possibly an emergency temporary standard. In the meantime, employers should continue comply with OHA guidance, CDC guidance and State executive orders and take precautions to protect workers. Employers who fail to take such precautions run the risk of civil and criminal penalties under long-standing OHSA provisions designed to assure safety in the workplace, as well as costly lawsuits by employees.
References Valerie Bauerlein, Jennifer Levitz, Alejandro Lazo, The New Front-Line Coronavirus Workers: Grocery Clerks, Delivery Drivers, The Wall Street Journal, March 24, 2020; Abha Bhattarai, ‘It feels like a warzone’: As more of them die, grocery workers increasingly fear showing up for work, The Washington Post, April 12, 2020; Debra Cassens Weiss, Wrongful death lawsuit alleges Walmart failed to protect employee who died from COVID-19, ABA Journal, April 7, 2020.
 See, COVID-19 Guidance for Retail Workers (April 8, 2020); COVID-19 Guidance for Package Delivery Workers (April 13, 2020); COVID-19 Guidance for the Manufacturing Industry Workforce (April 16, 2020); COVID-19 Guidance for the Construction Workforce (April 21, 2020).
 http://www.tdu.org/call_congress_demand_protection_for_frontline_workers; https://actionnetwork.org/forms/covid-19-take-action; https://www.safetyandhealthmagazine.com/articles/19692-lawmakers-seek-bill-of-rights-for-essential-workers
 State of New Jersey Executive Order No. 202.16, April 8, 2020
 State of New York Executive Order No, 202.16, April 12, 2020
 State of Connecticut Executive Order No. 7N, March 26, 2020