WASHINGTON—The U.S. Senate heard from the convenience and fuel retailing industry on May 12 as legislation develops that would provide liability protections for businesses from claims related to COVID-19 exposure.
NACS Treasurer Kevin Smartt, who is the CEO and president of Kwik Chek Food Stores, which has 47 stores across Texas and Oklahoma, testified before a Senate Judiciary Committee hearing that examined liability during the COVID-19 pandemic on behalf of NACS and its members.
“I am a retailer, wholesaler and distributor. All my businesses are considered ‘essential’ and have remained open during the COVID-19 pandemic,” said Smartt, who is also the owner and CEO of McCraw Oil Company, a fuel wholesale distribution company; McCraw Transport, a fuel delivery company; and Texas Born, a food product company.
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.
Convenience retailers, recognized as part of the nation’s essential critical infrastructure by the U.S. Department of Homeland Security (DHS), have strived to stay open and provide their communities with much-needed food and fuel. However, remaining open has been anything but business as usual amid numerous obstacles, such as significant supply chain deficiencies and shifting and conflicting public health guidelines from federal, state and local agencies.
“Our businesses are providing essential goods and services to our fellow Americans during this national emergency, yet we are not undertaking this lightly. We refuse to sacrifice the health and safety of our employees and customers just to stay open,” Smartt said, noting that to remain open the company has made significant responsible investments to ensure all employees can come to work and do their jobs without knowingly being exposed to COVID-19. However, even with these protocols in in place, guaranteeing that no customer or employee will get sick during a pandemic is impossible.
Since early March, Smartt said that Kwik Chek stores have adjusted operations by implementing intensive cleaning protocols to ensure the safety and protection of employees and customers, and these efforts are reevaluated daily. On April 22, his company followed its new internal protocols and closed one of its stores after an employee was diagnosed with COVID-19. Team members who had been in contact with the sick employee were requested to self-quarantine for 14 days, and the company hired a third-party contractor to conduct a medical-grade clean of the store.
The public and local law enforcement were notified of the situation, as many local police frequent Kwik Chek stores, 30 of which are 24/7 operations, at all hours. “We shifted a nearby store to 24-hour service to accommodate these and other first responders,” said Smartt. “I am happy to report the employee has recovered, and the team members in that location did not get sick.”
Just recently another employee at a different Kwik Chek location exhibited symptoms of the virus and was tested (the test came back negative for COVID-19). Prior to receiving the test results, Smart said that the decision was made to immediately quarantine all team members who had been in contact with the symptomatic employee, and the store closed for cleaning.
“We’ve tried to do the right thing. We chose people first over economics,” said Smartt, adding that although his fuel volume is down 40% and in-store sales are down about 17%, the company is keeping its 600-plus employees on payroll at full pay. “We should not be punished with unfair lawsuits just because we kept our doors open for the American public,” he said.
Smartt encouraged Congress to pass legislation—supported by a NACS-led coalition of associations whose members are also recognized as part of the nation’s essential critical infrastructure—that protects essential businesses against unwarranted liability and takes into consideration these 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 to cover businesses who have been responsible and not those who have been bad actors;
- 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.
“It was an honor to represent the convenience industry before Congress,” Smartt said. My testimony about what I’ve done to protect my employees and customers in the midst of this pandemic is not unusual for this extraordinary industry. Countless convenience store retailers have taken similar measures to protect their people,” Smartt said. “And yet those measures may not be enough to protect them from unfounded lawsuits from those looking to take advantage of the crisis. This is why I went before Congress—to ask them to pass legislation that provides liability protection for the businesses who never closed and did the best they could in the midst of this unprecedented, highly contagious virus.