Retailers - fighting to stay profitable, fighting to stay safe?

The retail sector has been hit hard by the COVID-19 pandemic, forcing businesses to confront a number of hard questions about how they can and should conduct business during a global public health crisis. In this article, we provide perspectives from both the United Kingdom and United States on compliance with safety measures during the pandemic, discuss the shift in responsibility to ‘police’ rules and regulations from individuals to retailers, and offer a glimpse into the future in terms of the likely claims retailers may face.

Keeping up with the times: the world is watching

While initially retailers and restaurants could say that they were receiving conflicting information from the World Health Organisation and/or Centers for Disease Control and Prevention, and as such were not aware of the correct course of action, this will no longer serve as a viable excuse or defence for not having the appropriate safety protocols in place. For example, if store A enforces social distancing, mask wearing and only permits a certain amount of people in the store at a time and store B does not, this will open up store B to potential claims for not keeping its customers and/or employees sufficiently safe from COVID-19 exposure.

Last year in the US, bars were noted to be one of the most hazardous places for infection, with a college bar in Michigan being linked to 188 infections in June of 2020. This story provides a cautionary tale, as video footage was used as a channel to call out the business’s lack of compliance with safety measures. In 2021, a firmer stance is likely to be taken against businesses failing to comply with safety protocols, resulting in not only an increase in lawsuits but also leading to potentially irreversible reputational damage. After months of lockdown, any additional reductions in business could be devastating.

Now that England is looking to come out of its third lockdown, retail businesses should take stock of their COVID-19 policies and procedures, bearing in mind that what a court may consider negligent may vary in line with the guidance and law at the time. For instance, it only became mandatory by law for customers and staff to wear a face covering in shops, supermarkets and shopping centres on 24 July 2020.

As businesses in both the US and UK continue to operate on shifting sands, it is important that retailers engage with the workforce, undertake and share regular risk assessments, adjust to evolving guidance, and provide ongoing training to staff.

Whose responsibility is it to ‘police’ the rules?

There has been a shift away from individual responsibility towards the retailer to enforce safety measures such as social distancing and the wearing of face masks.

Back in July 2020, Sainsbury’s, Morrisons and the Co-op said they would not ask their staff to police the COVID-19 rules. Only two months later, Morrisons reinstated door marshals whose roles now included “reminding” customers to wear face masks. In January 2021 Morrisons and Sainsbury’s announced that they would bar customers who refused to wear face coverings.

The UK Government published guidance in November 2020, stated that businesses where face coverings are required to be worn when on the premises should take “reasonable steps” to promote compliance. The National Police Chiefs Council has also said that it expects retailers to manage compliance and that police officers will only be involved as a last resort.

Retailers have reported increased violence against workers. Smaller local retailers often rely heavily on their local customer base and now risk enforcement action or even personal injury claims if they do not take “reasonable steps” to promote compliance. Equally, they fear customer abuse and negative feedback if they are perceived to be too heavy handed in their approach.

In the UK, we foresee claims will be brought by customers and/or employees who say that they:

• Contracted COVID-19 as a result of customers not wearing masks (causation will be a contentious issue).
• Suffered physical or psychiatric harm as a result of being attacked by customers whom they sought to remind.

In the US, the foregoing is already coming to fruition. Initially, retailers did not want to play the part of enforcer but as the pandemic raged on, retailers became more vigilant. There are now signs on all stores noting that masks are required and for those unable to comply due to medical reasons, many supermarkets are ‘inviting’ customers to arrange home deliveries.

Despite these updated efforts, incidents still occur leaving retailers vulnerable to both claims arising from the attempted enforcement of face coverings and social distancing policies, as well as claims by workers that they are not being sufficiently protected. However, absent a “super spreader event” in the US, we do not anticipate many claims against retailers by customers claiming to have contracted the virus from their store.

Comment

As entire countries come out of lockdown, retailers will continue to be placed under increasing pressure to take responsibility for enforcing the wearing of face masks and social distancing. Further, businesses must ensure they keep up to date with their obligations and responsibilities with regard to both employees and customers. Failure to comply with these changing rules, guidelines and laws could result in legal claims being brought against them in addition to extensive reputational damage given how ‘viral’ social media can be.