Recently, District of Columbia Mayor Muriel Bowser issued an executive order requiring all customers entering Washington DC grocery stores, foodbanks, and convenience stores to wear masks or protective face coverings when entering. The legislation, aimed at stopping the spread of Coronavirus also requires grocery store limit the amount of people within a store and provide additional self-checkout lanes.

Similarly, many Washington DC area grocery stores have taken additional measures to protect their employees during the coronavirus, including installing glass partitions at check-out counters, increasing the availability of self check-out lanes and permitting employees to wear personal protective equipment such as face shields an masks. These measures come at a time when numerous lawsuits have been filed on behalf of grocery stores workers in response to the threat of Coronavirus present in the workplace.

In Illinois, the family of deceased Wal Mart employee who died of Coronavirus filed suit against the retailer, alleging that Wal Mart did not adequately clean the store, enforce social distancing, notify employees about colleagues who were showing coronavirus symptoms and provide protective gear, such as gloves and masks. In response, Walmart said it increased safety measures across the company by adding sneeze guards at cash registers, putting decals on the floors about social distancing and limiting the number of customers in stores.

In the coming months, we anticipate that scores of class action lawsuits will be filed against retailers and grocers by their employees alleging that their employers failed to take adequate steps to protect the employees from exposure to COVID-19.  But there are a number of defenses available. First, employees may have difficulty proving that they were exposed to COVID-19 at work or that any act or omission by the employer resulted in the exposure. Second, so much is unknown about COVID-19 that it also may be difficult for employees to establish that the employer acted unreasonably and below the standard of care with respect to workplace safety and hygiene under the unique circumstances.  Additionally, an employer can assert that the Workers’ Compensation bar provides that an employee’s exclusive remedy is Workers Compensation, barring suits by employees against them.

Furthermore, courts may be reluctant to certify such lawsuits as class actions, as employees may have difficulty satisfying the elements of Rule 23.  For one, employees may not be able to sufficiently show that the questions of law and fact are common to the class.  For example, alleged exposure may have occurred because of different alleged acts or omissions by the employers. Similarly, the employees may not be able to show “predominancy” as any damages by individual employees are likely separate and distinct from each other.

Despite these defenses, courts nonetheless may certify the employee classes and allow the cases to a potentially sympathetic jury for resolution.  Therefore, retail and grocer employers should monitor evolving legislation and implement all practical safety measures. Moreover, such employers should consult experienced class action counsel to help mitigate the risks and exposure of a potential class action suit.