NACS Treasurer Testifies Before U.S. Senate on Liability

Kevin Smartt of Kwik Chek asked the Judiciary Committee to consider reasonable liability protections for responsible businesses.

May 13, 2020

WASHINGTON—The Senate Judiciary Committee convened a hearing yesterday to examine liability protections as they relate to the COVID-19 pandemic. NACS Treasurer Kevin Smartt, who is the CEO and president of Kwik Chek Food Stores, which has 47 stores across Texas and Oklahoma, testified on behalf of NACS and its members.

Smartt shared with committee members that one of the top issues facing the convenience retail industry during the pandemic is the threat of unfounded lawsuits against retailers alleging that someone contracted COVID-19 on their premises. “While it’s extremely difficult to prove where COVID-19 was contracted, we know that some plaintiffs’ attorneys will look to take advantage of the crisis and file claims against businesses who stayed open,” he said.

He shared the protocols his business has put in place throughout the pandemic crisis, which extend to his Kwik Chek Food Stores, as well as his other essential businesses that have remained open: McCraw Oil Company, a fuel wholesale distribution company; McCraw Transport, a fuel delivery company; and Texas Born, a food product company.

Since early March, Smartt’s Kwik Chek stores have implemented time- and cost-intensive virus mitigation protocols to protect the safety of employees and customers, reevaluating how they approach and respond to the COVID-19 threat every day. In-store team members have undergone intensive safety and cleaning training, and they are disinfecting all high-touch areas, such as cashier counters, PIN pads and food preparation areas, at least every 15 to 30 minutes.

Texas Sen. John Cornyn commended Smartt for acting to protect employees, customers and the community, steps which should be considered as liability protection legislation is drafted. “If what we do doesn’t work for people like you and your business, it’s not going to work for anybody,” Sen. Cornyn said.

NACS is leading a coalition of associations and groups whose members are recognized by the Department of Homeland Security as part of the nation’s essential critical infrastructure. Thirty-six associations submitted a letter for the record for yesterday’s hearing underlining their support for policy that protects essential businesses against unwarranted liability.

In his testimony, Smartt asked Judiciary Committee members to take into consideration the following principles:

  • Protecting essential businesses that were asked to keep operating to serve their communities and first responders;
  • Protecting against claims that the virus was contracted by a customer or employee on the premises or due to the continued operation of an essential business;
  • Ensuring the protections cover employers that take precautions;
  • Tailoring liability protections so that they still allow true bad actors to be sued;
  • Separating any questions of compensation for people who get sick from the question of whether and when businesses should be liable; and
  • Limiting the duration of these protections so that they apply to situations arising out of the current crisis but are not permanent changes to liability laws.

Some panelists shared that absent enforceable regulations from the government, whether the Centers for Disease Control (CDC) or the Occupational Safety and Health Administration (OSHA), adequate workplace protections and safety protocols are not in place to protect employees from the risk of COVID-19.

Marc Perrone, international president of the United Food and Commercial Workers International Union, said that food workers are risking their health and safety to ensure the nation’s food supply is safe, noting that they are on the front line of this crisis every day.

Given the frequent changes in pandemic guidelines for retail operations, whether from the CDC, OSHA or the local county, Smartt responded to a question from Texas Sen. Ted Cruz by saying that the threat of potential lawsuits impacts decision making. Smartt said that it’s difficult to communicate changes that can happen daily to all 600-plus employees including, for example, different mask requirements for drivers passing through multiple counties with varying degrees of PPE requirements.

Throughout the hearing, Smartt continued to clarify that the industry is looking for limited liability protection for businesses who have done the right thing and is not looking to protect the bad actors.

“Mr. Smartt, you’ve become the gold standard” for how businesses are protecting their employees and customers, suggested Chairman Lindsey Graham, adding that there is a real need to have either CDC or OSHA standards in place, so businesses know what is expected of them during this pandemic crisis.

Coronavirus Resources

NACS has compiled resources to help the convenience retail community navigate the COVID-19 crisis. For news updates and guidance, visit our coronavirus resources page.