Keeping up with state and county regulations in the midst of a global pandemic has been one of the greatest challenges for retailers in 2020 and with a new vaccine arriving, this challenge does promise to go away any time soon. The mandates or best practices have come from a variety of resources from local officials to state and federal agencies like OSHA, FDA, to the CDC. The information has been vast but the struggle has been how to implement the changes successfully. This has included such things as mask wearing, physical distancing, controlling the number of employees in the store, instituting contactless transactions, improving speed of service and introducing more self-service options.
Best Practices, Guidance vs. Legal Requirements:
How do retailers distinguish between the three? The increased use of guidance during the COVID-19 makes it critical for businesses to understand how to use agency guidance to defend against regulatory enforcement and litigation. The federal government has issued executive orders clarifying that guidance does not currently give way to ligation because it is not enforceable. OSHA clearly states in their publication on COVID-19 “This guidance is advisory in nature and informational in content. It is not a standard or a regulation, and it neither creates new legal obligations nor alters existing obligations created by OSHA standards or the Occupational Safety and Health Act (OSH Act).”
It can get confusing so it’s important to remember the differences between laws, regulations, rules, guidance and policy.
Law: Passed by both houses and then signed by president
Regulations: Agencies tasked with implementing the law by drafting regulation
Rules: Detail in the regulation
Guidance: Supplemental material that clarifies the rules e.g. FAQs
Policy: how the regulation will be implemented
Retailers however can use their adherence to the guidance to defend against claims or litigation by demonstrating their compliance with an agency. And although agencies like OSHA guidance on COVID-19 is not law, employer still have a legal duty to keep workplaces free from known hazards such as coronavirus related dangers.
Responding with Operational Changes
With an average of 30-40 change orders per day, some retailers have had the luxury of having a team of people keeping up on the changes. Others have had to rely on internet resources such as those found on the NRF website, but even this solid organization has had a hard time keeping up.
What all retailers have in common is the desire to protect customers and team members. From an employee standpoint it continues to be a challenge just to get people to show up to work each day. If they aren’t sick with COVID, the mental strain of having to deal with all of the new rules on the job becomes a challenge for workers earning minimum wages. Retail Wire reports that 55% of retail workers are feeling more stressed this past holiday seasons due to the COVID. From a risk management standpoint COVID you need these workers engaged, informed and ready to implement the ever changing requirements coming down from government officials. Suddenly your job has been more focused on operations and team motivation more than ever before.
From an operational standpoint developing a plan for every location including a comprehensive risk assessment of all work areas and tasks including designating a person at each location to implement the plan. Once you have the plan in place it’s important to ensure there is compliance to that plan. One GB retailer reported to have conducted over 25K Closed Capture Technology audits of their employees for this purpose and for contact tracing. If there is noncompliance with the regulations, the stores are given immediate feedback so corrective measures can take place. It also allows the team to determine if there are additional operational changes needed to help with compliance.
Store communication and training, while important prior to COVID, has taken on an even greater importance. Most retail Risk Managers are reporting having weekly meetings to discuss operational plans, compliance issues, new claims and how to mitigate exposure.
The Changes in Retail are here to Stay
As a retailer you have had to pivot, innovate and recreate the way they do business in 2021. Retailers have all been warned that they need to stop expecting business to return to “normal.” Most that offered prepared foods, for example, have shut this offering down and moved to a “grab and go” or delivery approach. This along with curbside pickups and 3rd party shoppers premise has led to a whole new set of the types of claims. It has also required risk managers to review indemnification agreements and work with operations on in store changes to accommodate this new way of doing business. This lead to the other challenge of determining how to keep 3rd parties up to date with and in compliance with the state and county regulations.
Retailers have seen less foot traffic in store resulting in fewer customer claims. While you may have realized the benefit of less claims it is important that remember that this change may not be long lasting. It’s important that you develop a good relationship with your actuarial partner to help avoid any knee jerk reactions. With the vaccine likely widely spread in June or July, retailers can expect to see an increase in store foot traffic.
Mary McGurn has 30+ years of industry experience and leads the Retail Practice at GB. Find her on LinkedIn.