- The coronavirus pandemic has upended life for many retail workers, who risk catching or spreading the virus as frontline workers.
- Compounding those fears are “gag orders” from employers, which require employees to stay silent.
- While anxieties over coronavirus remain top-of-mind for frontline workers, retail employees feel they have little by way of recourse when workplaces stifle discussion of COVID-19 cases.
- OSHA, an agency meant to protect workers from unsafe work conditions, is powerless to take action against these “gag” rules because they are often completely legal.
- Visit Business Insider’s homepage for more stories.
Caleb Lawson had 24 hours to make a decision: come back to work at REI and put his partner’s health at risk, or quit. This was in June, when his REI store in Grand Rapids, Michigan, was allowing shoppers back inside for the first time since the coronavirus caused mass retail closures across the country. Lawson was concerned about the lack of updated protocols and the prioritization of sales over safety.
“I didn’t see the strength of management in making sure employees were safe,” Lawson told Business Insider in an interview. “The entire conversation was completely based around welcoming customers back and getting the store back off the ground”
Within that 24-hour window, Lawson resigned.
About a month later, employees at the Grand Rapids REI found out that a colleague had tested positive for COVID-19. The news did not come from management.
On July 6, one of Lawson’s former coworkers alerted the retail staff through a group chat that he had tested positive for COVID-19 on July 2, according to reporting by The New York Times. The employee said that he had been asked by REI managers not to tell his coworkers about the positive test, according to messages reviewed by the Times. The store was closed on July 3 to investigate “potential” COVID-19 exposure, but managers determined on that day that there was no exposure. The store reopened on July 5, and managers didn’t tell workers about the positive test until July 9.
“It took a week for management to actually acknowledge that there had been a positive case, and it only happened because so many of us were pushing and asking about it and calling HR,” Lawson told Business Insider in an interview.
A spokesperson for REI told Business Insider in an email, “The positive case at our Grand Rapids store occurred before the co-op’s protocol update.”
Lawson said he worried that the silencing tactics could create unsafe conditions for those still working at the store. So the former REI employee filed a complaint with MIOSHA, Michigan’s branch of Occupational Safety and Health Administration.
“An employee tested positive for COVID-19, and the rest of the team was not notified and the store remained open. The employer claimed there was ‘no exposure,'” Lawson wrote in his complaint. “Additionally, the employer instructed the positive employee to not tell any coworkers or post anything on social media about their positive test. This put the team and the local community at serious risk for the spread of the coronavirus.”
Through OSHA, workers like Lawson are able to file anonymous complaints about unsafe working conditions. OSHA then conducts investigations into complaints. OSHA was established under the umbrella of the United States Department of Labor in 1970 to protect workers and set national standards for working conditions.
“OSHA is committed to protecting America’s workers during the pandemic and has been working around the clock to that end,” an OSHA spokesperson told Business Insider. “As of September 22, OSHA inspections alone have helped ensure more than 615,000 workers are protected from COVID-19.”
OSHA later clarified that the 615,000 “represents the number of workers who were covered during each inspection conducted since Feb. 1, 2020, and thus removed from hazards.”
But in Lawson’s case, MIOSHA told REI they would be completing the investigation “off-site.” The agency asked REI to “self-audit” to complete the investigation.
Lawson’s experience reporting a pandemic-related workplace safety issue highlights a feeling among retail workers that they are on their own when it comes to fighting “gag” orders and staying safe during the pandemic.
Workplace gag rules, which cropped up as retailers began reopening this summer, prohibit or discourage workers from speaking with one another about positive COVID-19 diagnoses. Employers often cite healthcare privacy laws as their rationale, giving employees little recourse. This murky legal and safety landscape has created a complicated workplace landscape for retail employees working during the pandemic.
Retail workers feel more unsafe than ever during the pandemic and can’t rely on OSHA for protection
Complaints like Lawson’s are widespread in the retail workplace during COVID-19. Employees at McDonald’s, Target, and Amazon have reported that companies told them to stay mum regarding positive COVID-19 cases, according to Bloomberg.
Working with labor activist group United for Respect, Walmart employees created their own COVID-19 tracker, finding that 22 workers have died from COVID-19 so far. Despite those numbers, workers at some stores have alleged that they have been “coached” by management to never discuss positive cases, said a representative for the group.
At a Georgia CVS, after a pharmacy employee contracted COVID-19, the CVS district leader instructed employees not to tell patients that their medications had been filled by someone who tested positive for the virus, per a leaked email shared with Business Insider.
Labor unions have slammed the agency for its response to COVID-19. The American Federation of Labor and Congress of Industrial Organizations — the largest union in the United States — sued OSHA over failure to issue emergency workplace safety rules. A court dismissed the suit in June, according to Safety + Health magazine. An OSHA spokesperson told Business Insider that the DC Circuit Court “unanimously ruled that OSHA had reasonably determined that an emergency temporary standard is not necessary at this time.”
On September 14, the New York Times editorial board opined that such emergency rules could have prevented “many needless deaths in warehouses, grocery stores, and meatpacking plants.”
“OSHA has preexisting requirements and standards that not only remain in place and enforceable, but also apply to protecting workers from the coronavirus,” an OSHA spokesperson told Business Insider in a statement. “These include conducting hazard assessments, ensuring sanitation and cleanliness, providing Personal Protective Equipment (PPE), and requiring training and education, as well as the General Duty Clause of the Occupational Safety and Health Act (OSH Act).”
OSHA’s website currently says that it “prohibits employers” from firing employees for “raising workplace safety and health concerns related to COVID-19.”
But OSHA also “does not require employers to notify other employees if one of their coworkers gets COVID-19.” Instead, it recommends that employers take “appropriate steps” to protect workers from potential outbreaks. In the event of a “confirmed case,” the administration’s website advises measures like sanitizing work environments, notifying employees, and establishing screening tests for workers. But these measures are largely in the hands of the businesses to determine.
“To the extent that employers become aware that a person with COVID-19 has been in the workplace, employers can consider how best to identify workers who have been exposed, how to notify them of such exposure, and what leave and other workplace policies can be used to facilitate appropriate self-isolation and monitoring,” an OSHA spokesperson told Business Insider. “Employers should work with their state/local/tribal/territorial health department on issues related to contact tracing and notification.”
Both shoppers and employees have little legal recourse in terms of coronavirus-related negligence cases, said Remington Gregg, a lawyer for consumer rights group Public Citizen.
A plaintiff in a coronavirus-related negligence case would have to do more than just prove that a business “failed to take reasonable precautions.” Gregg said that a negligence case would hinge on the plaintiff — whether they be a consumer or a worker— would have to prove that this “failure to take reasonable action directly led to your injury.”
“That’s really tricky,” Gregg said. “If you’re at a Target, you’re probably also going to other places too. Then the question is, where else did you go? And the business has a really good defense to say you did not meet the burden of proving causation.”
Some retailers are going above and beyond to throw a wrench in such negligence cases. The Sacramento Bee reported that local businesses have begun private investigations to prove that sick employees contracted the virus outside of work, in response to a California law classifying COVID-19 as a workers’ compensation injury. California law currently puts the burden of proving that a frontline worker didn’t contract COVID-19 on the job upon employers, allowing affected employees more access to workers’ compensation.
Retail stores might feel safe to shoppers, but experts are “much more worried” about employees
Retailers have updated their stores with customers in mind during COVID-19, including mask mandates, one-way aisles, social distancing, and plexiglass dividers. These precautions allow shoppers to feel safer about entering into an indoor space, where the virus spreads most easily, for a shorter amount of time. But for employees, they’re dealing with prolonged hours inside a store, which makes them more vulnerable to contracting COVID-19.
“I’m much more worried about employees than I am about customers,” Jeffrey Siegel, Professor of Civil Engineering at the University of Toronto, told Business Insider.
Siegel explained that certain areas of retail stores are higher risk for employees, like shared employee bathrooms, because there are “routes of transmission that might come from toilet flushing,” as well as “break rooms, lunchrooms and types of environments where you can get episodic crowding.”
While the shopping floor of a retail store might be revamped to focus on social distancing for customers, a break room where employees spend their breaks might not be. These conditions mean employees are assuming a certain amount of risk whenever they work.
“Every time you are in an environment where social distancing is difficult, then there’s a risk of infection,” Dr. Alvin Tran, health administration and policy professor at the University of New Haven, told Business Insider. “So if you are working in a retail store where there are a lot of customers and it’s very difficult for you, as an employee, to stay a certain distance from other people, then there is a risk.”
This also makes contact tracing in the event of a COVID-positive employee more complicated.
In many cases, contact tracing is handled by local governments or agencies who are conducting the testing and rely on the memory of the patient, including where they’ve been and who they interacted with. A COVID-positive employee might have spent time in a break room alone and then left, and reported no interaction. But the employee who entered the break room after them is still at risk for inhaling aerosols that contain the virus. Additionally, agency contact tracing might take longer than a retailer feels comfortable with, so some retailers have stepped in to create their own contact tracing protocols as well. The gag orders often stem from these contact tracing efforts, as retailers say they want to keep employee health information private.
At the Grand Rapids REI, the store conducted its own contact tracing, but the findings highlighted how complicated the process can be. The company originally concluded that the employee did not have close contact with other employees, although days later the company revised that conclusion and notified five employees of potential exposure. Later the company informed all employees of the potential exposure.
Tran said that, as a matter of protocol, gag orders around COVID-19 cases are not inherently an issue, because employers are right to establish protocols around contact tracing. But he also said that employers should not be silencing employees to avoid causing concerns in the workplace.
“At this point, I would ask the retailer to be very clear as to why this gag order is being implemented,” Tran said.
In the case of REI, the co-op identified “a need to clarify a portion of our contact tracing guidelines” in its four-page response letter to MIOSHA’s self-assessment request. (The response letter was provided to Business Insider by REI.)
MIOSHA replied with a letter saying the company’s “response has been determined to be satisfactory. This complaint is considered closed.”
REI told Business Insider that the company updated its employee notification procedures in mid-July. “Under the updated policy, we communicate with all employees at a location, even if they are not directly exposed. We still can’t share the names of employees diagnosed with COVID-19, but the employees themselves can share if they choose. To ensure employees understand our contact tracing process, a summary visual of our contact tracing action plan is next to our health screening station in all stores.”
For Lawson, REI’s updated pandemic protocols came too late. After quitting, he diverted his career path to seek out remote work that won’t put his partner’s health at risk.