Post #628: We need a simple piece of legislation or an executive order in Virginia

Posted on April 13, 2020

In a nutshell:  I think many major retail chains, open as essential businesses under the law, are failing to provide (or even require) masks for public-facing employees out of fear of legal liability.  If so, that can and should be fixed by statute or executive order.

Detail follows.

Specific proposals

1:  At the minimum, we need legislation or executive order that specifically exempts employers from liability if they make a good-faith effort to supply their employees with masks.

2:  Better, that plus mandatory mask use in all essential businesses.

3:  Better still, from a public health perspective, that plus mandating employers to provide those  masks.  Or at least provide masks to employees who own nothing better than a minimal expedient mask such as a bandana.

4: Possibly, legally define essential store employees as a second tier of workers, after health care providers and first responders.  Consider prioritizing any excess of second-tier masks (i.e., surgical masks, as opposed to N95 respirators) to this population, as a matter of public health policy.


In Virginia, I’d think that option 1 is sufficiently business-friendly as to be able to be passed without contention.  Options 2 and 3 have a compulsory aspect that might make them harder to enact. Option 4 potentially conflicts with supply of those second-tier masks (surgical masks, not N95s) to hospitals, and so might be the most controversial of all, until we have passed the peak demand for hospital beds.


Why we need legislation or executive order

The problem: Essentially business are not supplying masks to employees.  As a result, when those employees are masked, it’s a hodge-podge.  On my last trip to Giant, at least one employee was wearing nothing more than a bandana.  At Lowes, I’m still seeing that sort of minimal protection, plus the occasional non-masked employee.  And the former Wegman’s employee I know said that Wegmans was not supplying masks, either.

This is a problem.  You can see, from Post #624, that it’s a near-certainty that these employees are being exposed to coronavirus-infected individuals on a daily basis.  And they, in turn, can interact with dozens to hundreds of members of the public in a single day.

If the use of these essential businesses is currently providing a path for transmission of disease, then, from a public health standpoint, it’s important to increase the average  effectiveness of the set of masks being used in that setting.  Any way we can.

(And don’t you wish some smart epidemiologist could tell us whether COVID-19 is being transmitted in those spaces, or not?)

Why aren’t employers providing masks? 

Clearly, even now, even after the CDC changed its guidance, many national chain stores operating as essential businesses are still not providing masks to employees.  And yet, by report, our locally-owned businesses seem to be doing that fairly frequently.  Why is that?  Why are the major chains so reluctant to do this, where mom-and-pops are doing it as a matter of course.

I’ll bet their corporate lawyers advised them not to, on liability grounds.  If you give your employee a mask, you a) admit that there is a workplace hazard, and b) have provided your employee with what is, in effect, an untested piece of safety equipment of unknown effectiveness.

My guess is, counsel for major corporations have figured out that this is a significant liability issue.  In fact, this being America, I bet a number of law firms are already gearing up for class-action suits on this right now.    It’s a certainty that a significant number of these essential-business employees will get infected with COVID-19.  At the minimum, those people are going to have health care expenses and lost wages.

The lawsuit practically writes itself.  Hence, corporate counsel suggests a policy of indifference.  Which is precisely what the manager of the Pan Am Safeway conveyed to us (see Post #599).  He literally told my wife that corporate policy was to allow employees to wear their own masks at work, if they chose to do so.  My wife kind of lost it, when she got that as the answer.

Initially, I thought they were either stupid or uncaring (Post #599).  Which is why we no longer shop at Safeway, and may never again.  But in hindsight, I think they’ve just lawered-up on this issue.  Doesn’t that response from Safeway (above) sound like a carefully-crafted legal response, designed to minimize the likelihood of corporate liability?

And if so, please note that nobody can talk about this openly.  Not in the current circumstances.  Nobody is going to say, yeah, we decided to put our front-line employees at risk, for fear of hurting the bottom line with lawsuit liabilities.  All you can expect to hear, from major corporations, will be a mouthful of legal mumblety-speak.  Which is exactly what we got from our local Safeway.

Is it possible that they just can’t buy masks?  I don’t think so.  Cheap, single-use masks (not suitable for health care use!) are still available with some back-order lag.  If John Q Public can get them, with no access to wholesale channels, I’d have to believe that major US chains could get them.  And if not, maybe the government could help out by diverting some of the second-tier masks (not N95s) for benefit of these workers.  Or third-tier masks, such as higher-end dust masks.  Something.  Anything.

I haven’t done the math, but my gut tells me that, with an explicit policy of re-use established up front, this would not require an impossibly large number of masks.  Hospitals are incredibly labor-intensive, with more than 60 percent of hospital costs directly attributable to nurse labor alone.  By contrast, in grocery stores, the wage bill makes up about 12 percent of total costs.  (I know that off the top of my head because I’m a health economist and nursing wages are a critical issue.)  Dollar-for-dollar of final product, and with no requirement to dispose of equipment due to sterility concerns, it strikes me that (e.g.) proper filtration-rated surgical masks (i.e., real masks) for grocery store checkout clerks would be a drop in the bucket.  But I’ll do a separate post to do the math on that.  (Edit:  Done, 207,000 or maybe a lot fewer.  See Post #629)

We can fix this with the stroke of a pen.

If the situation is as I have laid out here, this is one of the few things about this crisis that can be fixed with the stroke of a pen.  An emergency executive order, or via legislation.  My understanding is that the legislature has to re-convene to delay the May elections anyway.

Now would be a great time to figure out how best to protect our second tier of essential employees.  Starting with removing legal impediments that are hampering private-sector response.

Maybe grocery-store clerks don’t need protective gear as much as hospital workers and first responders do.  But they need it some.  And they need it now.  Remove the legal impediment, and let’s see if the private sector steps up on this one.


Christopher Hogan, Ph.D.