California AG Pressures Walmart to Protect Vulnerable Employees

Sacramento, CACalifornia Attorney General Xavier Becerra joined a coalition of 12 attorneys general in a letter that calls on Walmart to improve its efforts to protect workers and the public during COVID-19. Lawyers have anticipated a surge in California labor lawsuits arising from employer failures to adequately protect essential workers.

But these lawsuits can address the damage only after it occurs. There is no adequate remedy for the loss of a loved one or the permanent damage to health and wellbeing that can come from COVID-19. And so far, much touted federal legislation falls short when it comes to shielding some of the most vulnerable workers. In their appeal to Walmart, the attorneys general have fallen back on another lawyerly tool --persuasion seasoned with shame.

Six issues

The letter makes six requests. It asks Walmart to:

• At a minimum, offer paid leave protections in line with what is required for smaller employers under the Families First Coronavirus Response Act;
• Provide non-medical masks for employees;
• Install shields or other barriers at registers and check-out areas to physically separate cashiers and customers, and use every other register;
• Assign an employee to wipe down carts and handbaskets after each use;
• Reduce the number of customers allowed in stores as may be necessary to ensure that workers and customers can remain six feet away from each other at all times; and
• Inform state and local health departments in signatory states about the number of confirmed COVID-19 cases in each store.

Families First Coronavirus Response Act – and its shortcomings

The letter argues that Walmart’s current paid leave policies, and the pressure low-wage workers feel to come to work even if they are ill puts both the workers and the public at an increased risk of infection. This may be the most controversial of the six requests because it points to a much-discussed shortcoming of the federal Families First Coronavirus Response Act (FFCRA).

The FFCRA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The leave provisions are fairly generous:

• Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
• Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a need to care for an individual subject to quarantine or a child whose school or child care provider is closed or unavailable for reasons related to COVID-19; and
• Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where a qualifying employee is unable to work due to a need to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

The provisions applied beginning on April 1, 2020. They sunset on December 31, 2020. So, the first issue is that this is temporary relief for those with limited or no sick or family and medical leave.

Secondly, it applies only to employers of 50 or more but fewer than 500 employees.  This leaves out those who work for very large employers, such as Target and Walmart. As a recent Washington Post editorial notes, “According to the latest estimates from the Census Bureau, 98 percent of workers in the general merchandise industry work for a business that is too large to be eligible for paid sick leave under the new law.” Many of these were ordered back to work weeks ago as essential workers.

These are the people most at risk. Sadly, the attorneys general can only argue that Walmart should cover them as an exercise of corporate conscience.

Steps that would require employer investment in safety or reduce profitability

Most of the rest of the requested changes would require that Walmart make an investment in employee and public safety – by issuing non-medical masks; installing plastic shields between cashiers and customers; or diverting an employee to the task of cleaning carts and handbaskets. Reducing the number of customers permitted in the store would also likely reduce potential profitability. 

For anyone who has been to a Walmart recently, the proliferation of self-checkout stations suggests that reducing the number of open cash registers might be totally do-able. This could be hard on an employee who normally does that job and find herself suddenly short of hours, though.

Reporting confirmed COVID-19 cases

This may be something to watch. Walmart workers have reportedly complained that they have little or no information about the rates of infection at their workplaces. The lack of information deprives them of the opportunity to protect themselves.

In addition, however, creating a state database of infection rates could open Walmart to public health regulation, something the company is likely to resist. It could be a step toward protecting the public at large, however.