COVID and Retail Employment: Five issues on the near, long-term horizon

Retailers have regularly pivoted their business models over the past 18 months as changing guidance from world health organizations and national and local governments continue to change the rules of operation.

Now, with the rise of the Delta variant and renewed indoor mask-wearing guidance from the Centers for Disease Control and Prevention, retailers are once again navigating regulations that are changing practically overnight. While it’s challenging to predict what retailers will have to adapt to in 2022, we have laid out five major issues that could be on the near and longer-term horizon.

• Changing Guidance. In line with the CDC’s latest guidance, we can expect to see a general return to masks, either strongly recommended or mandated—regardless of vaccination status—in significant parts of the country. This could present a sticky situation in terms of compliance and enforcement for retailers in both the relationship with its own employees as well as between employees and customers. 
• Confidentiality. Vaccination can play an important role in a retailer’s safety protocol. Retailers can ask if an employee is vaccinated—there is no prohibition at the federal level against an employer asking its employees if they are vaccinated. (Asking whether an employee has been vaccinated is not considered a disability-related inquiry under the ADA.)

However, the US Equal Employment Opportunity Commission does say that any documentation of vaccination status—such as the type of vaccine, dates provided, and location—must be kept confidential.

• Vaccine Mandates. On September 9, President Biden announced a six-pronged strategy to fight the pandemic. Called the “Path Out of the Pandemic: President Biden’s COVID-19 Action Plan”, the sweeping plan heavily relies on employer vaccine mandates and testing programs – largely through an anticipated OSHA emergency temporary standard requiring vaccination or weekly tests for private employers with 100 or more employees.

These initiatives represent a major escalation in the White House’s efforts to increase vaccination rates and signal that the federal government will continue to rely on employers and other institutions, such as schools and universities, to incentivize and verify receipt of the COVID-19 vaccine. To date, there have been a number of court challenges to private employer vaccine mandates, but court decisions have been very favorable to the companies requiring vaccinations. In addition, the DOJ has issued a memo stating that private employer vaccine mandates are legal.

A challenge for some retailers will be determining whether they can provide a reasonable accommodation that does not pose an undue hardship on the business for employees with qualifying medical conditions or sincerely held religious beliefs.

• Employment and Consumer Litigation. Since the start of the pandemic, there have been more than 3,000 employment litigation lawsuits filed nationally, with employment discrimination, remote work/leave claims, and whistleblower claims making up the majority of cases.

Examples of employment discrimination allegations include failure to accommodate both physical and mental disabilities, as well as anxiety due to COVID-19, and disparate treatment based on an individual’s diagnosis of COVID-19. Whistleblower claims center around an employer’s to implement proper safety measures, including the failure to provide PPE.

Other types of cases being filed include those focused on wage and hour, such as expense reimbursement claims (such as compensation for WiFi or phone) and failure of an employer to pay for time an employee takes for COVID-19 screening and/or to get vaccinated.

About a year ago, there was a growing concern about an increase in consumer litigation, particularly those brought by consumers alleging they contracted COVID-19 in places of business—but that spike never materialized. Some of this can be attributed to approximately 30 states that have provided broad immunity to businesses, health care providers, and other entities through a liability shield.

These laws protect most or all businesses from lawsuits placing blame on an individual’s exposure, injury, or death due to COVID-19, unless that individual can prove gross negligence, willful misconduct, or failure to follow public safety and health orders. Interestingly, very few traditional consumer litigation cases have been filed during the pandemic, such as false advertising or Uniform Deceptive Trade Practices Act claims; non-education cancellations or postponements; personal injury; price gouging; products liability; and wrongful death. Instead, roughly 1,700 civil rights cases and 700 other consumer cases have been filed, although the frequency of new COVID-19-related suits is slowly declining.