Grocery Stores and COVID-19: How to Distance Your Business From Liability

While many businesses have suffered greatly during the COVID-19 pandemic, grocery stores have seen an increase in sales. Although many businesses have been shuttered during the past six weeks, grocery stores have typically been deemed an essential business across jurisdictions. Although this has been a difficult time for Americans in many ways, grocers have been serving more people due to restaurants being less available than they were before the pandemic began.

In March, for example, some grocers saw an increase in demand of up to 30 percent from customers.[1] With most Americans being subject to some form of shelter-in-place order since March, grocery delivery businesses have seen “unprecedented demand” for their services.[2] In short, there is more overall traffic in grocery stores, and people are buying more once inside the store.

The potential downside is that with great responsibility comes the chance for great liability. Grocers face the potential of litigation from both customers and employees during the pandemic. According to a report from mid-April, more than 30 grocery store employees have died due to complications from COVID-19.[3] The deaths range from a 59-year-old cashier in Massachusetts[4] to a 27-year-old clerk in Maryland.[5]

With a pandemic among us that has taken more than 60,000 American lives[6], grocers find themselves with a higher potential for litigation due to being one of the few businesses that have remained open consistently. It is imperative that grocers take steps to keep customers safe, keep employees healthy, and to protect their business from lawsuits as best as possible.

In an effort to assist grocers, the National Grocers Association has set forth best practices that should be followed. As the NGA notes, “communication with your customers and employees is paramount.”[7] Among the NGA guidance provided:

• Communicate with your customers the steps your business is taking to protect against COVID-19.
• Ask customers to implement social distancing.
• Educate employees and customers on CDC-recommended hygiene procedures.
• Institute additional mandatory cleaning or sanitizing schedules.
• Increase or add hand sanitizing stations around your stores for customers and employees.
• Assign employees to regularly sanitize shopping carts and other high-traffic or high-touch areas.
• Require any employees who have flu-like symptoms to stay home.
• Institute purchasing limits on high demand items and household staples (toilet paper, hand sanitizer, cleaning products).
• Stay in communication with local and state health officials.
• Consider changing regular store hours to encourage grocery shopping at lower traffic times.
• Schedule specific hours of operation for vulnerable populations to shop without other customers.
• Expand remote shopping options if available.
• Consider temporarily closing salad bars, buffets, and other ready-to-eat or sample offerings in stores.
• Update and communicate your sick leave and paid-time-off policies to your employees regarding COVID-19.
• Identify hard-to-cover positions and implement cross-training to prepare for coverage issues.[8]

The NGA guidelines are a good starting point for businesses who wish to keep those within the store safe and to also avoid potential liability. On top of the above guidelines, it may be helpful to:

• Have signage up reminding customers of the threat of COVID-19.
• Have employees who act as “lifeguards” and roam the store to politely remind customers to social distance.
• Be conspicuous with your cleaning and sanitization procedures. This will help create confidence that the procedures are being followed and will also create a type of accountability.
• Implement procedures for entering the store and checking out at registers that incorporate social distancing requirements (for example, having markers on the ground or floor spaced six feet apart).
• Require or recommend customers and employees wear face coverings, taking into account any state or local recommendations or requirements that might apply to a particular store.
• Limit the number of customers shopping at any given time.
• If there is a known COVID-19 infection of an employee or customer who was on the premises during their infection, conduct a comprehensive and thorough cleaning of the store, including possible retention of an outside company that specializes in this area.

Grocers, like any business which is open to the public, are not insurers of the safety and health of their customers; however, grocers have a duty under the general principle of negligence to exercise reasonable care in protecting customers from known hazards. Just as a grocer generally has a duty to enact reasonable inspection procedures to keep customers from slipping and falling, a grocer should likewise implement reasonable procedures to protect invitees from COVID-19 since it is a potential hazard known to the grocer. A court might deem some or all of the NGA best practices or the other suggestions discussed above to be “reasonable procedures”. If a given grocery store becomes a “hot spot”, then evidence of noncompliance with any of these practices may become suggestive of liability.

The situation with COVID-19 and potential liability is a fluid situation, but help could be on the way on the litigation front. Grocers, along with other businesses, may have an advocate in the Senate in Washington. As Congress debates further aid to state and local governments to help fill budget shortfalls during the pandemic, Senate Majority Leader Mitch McConnell has proposed that any subsequent funding measures “provide protection, litigation protection, for those who have been on the front lines.”[9] The Majority Leader has not provided details as to what such “protection” would be, nor is there a draft bill yet, but this is an issue to monitor as further funding bills make their way through Congress.

We do not know when commercial activities will return to “normal” nor do we know whether a “new normal” is permanently on the horizon. Now is the time to take the necessary steps to demonstrate to your customers that you are doing everything possible to provide a safe environment for them to obtain essential food and other provisions, and it is also the time to take necessary steps to protect your business from potential litigation.

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Authors: Jeffrey T. Thayer (Partner, San Francisco), Bryan M. Grantham (Partner, Atlanta) Editor: S. Christopher Collier (Senior Partner, Atlanta)

Hawkins Parnell & Young's national litigation team is helping businesses across the United States navigate unprecedented legal challenges arising from the COVID-19 pandemic. Visit our COVID-19 Resource Center for the latest insights and guidance.