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The COVID-19 pandemic is testing the retail industry like never before. We saw consumer spending rebound in May 2020, and retail sales rose 1.9% in September, indicating that the economy's biggest driver remains healthy.  As of early October, many states continue to ease restrictrions, making customers more comfortable returning to brick and mortar stores.

We are also starting to see wrongful death lawsuits filed against several retailers for employees, but will the next phase of litigation be from customers?   A growing number of state and federal lawmakers are considering legislation that would provide liability exemption for businesses. Pinpointing causation for a third-party claim could be difficult, however it is more likely to happen if a large number of people from a particular location become infected.

Is Reopening A Can of Worms?

Despite causation being difficult to prove, there are situations where a retail risk manager can anticipate issues. If a customer becomes infected after being in your store where adequate social distancing was not maintained, after using store restroom which is not designed for touchless enter or use, using items in store for public use not properly disinfected (e.g. payment key pads, conveyor belts, enter door handles), or becomes infected after worker coughs or sneeze near the customer, there are vulnerabilities, which could result in unfavorable result for the both the customer and retailer.  There is also the risk of confrontation with business invitees refusing to follow public health measures, or those safety measures instituted by the retail organization.

10 Ways to Stem the Tide in Retail:

If keeping your doors closed is not an option, here are 10 ways to limit your exposure to a wave of third party COVID-19 claims:

• Follow OSHA, CDC, Department of Labor and your local guidelines
• Work with your marketing department on reassuring and effective customer communication via social media and other mediums such as signage regarding mask requirements and give away free masks for those that don’t have them
• Refuse to sell or service customers that aren’t following the rules (and refer back to our October 2019 Industry Insights on how to combat bad behavior in retail)
• Document your cleaning and disinfecting measures to protect against exposure with logs and surveillance footage.  Make sure your conduct regular inspections to ensure compliance, and consult a professional environmental, health and safety expert.
• Constantly train and remind your employees of the regulations and protocols you established using signage and technology
• Ensure sick employees stay home
• If there is an exposure, use a contact tracing service to help with potential exposed parties.
• Limit or eliminate food samples or food bars
• Use curbside pickup to keep customers out of the store
• Revise refund policy to limit customer to employee interaction
• Use audio and visual reminders to customers regarding social distancing

Mary McGurn has 30 years of industry experience and leads the Retail Practice at GB. You can find her on LinkedIn

Kristy Sands has 30 years insurance experience in workers’ compensation and liability claims.  You can find her on LinkedIn

This article has been updated effective October 2020 to reflect current data.