Flying to Washington, D.C., in the middle of a pandemic to testify before Congress when the nation’s capital was under a stay-at-home order probably wasn’t on the list of things Kevin Smartt ever thought he would be doing. Yet when NACS called Smartt, president and CEO of Kwik Chek Food Stores, to ask if he would be willing to represent the industry before Congress at a hearing examining liability, he willingly obliged, knowing the urgent need for businesses to be protected from unfounded lawsuits related to the coronavirus.
In fact, one of the biggest threats facing the industry during the coronavirus pandemic is costly litigation that alleges employees or customers were exposed to COVID-19 at a convenience store, despite a retailer’s best effort to mitigate the virus. NACS has organized a coalition of essential industries to advocate for legislation that provides narrow liability protection for those businesses who acted responsibly from these types of claims.
In early May, the Senate Judiciary Committee convened a hearing entitled, “Examining Liability During the COVID-19 Pandemic.” Smartt was one of six witnesses, which included a labor union president, a university general counsel, a tourism industry executive, a law professor and a labor employment advocate. To maintain social distancing, Smartt and three other witnesses testified in person sitting six feet apart, while two of the witnesses testified remotely. Smartt was not just representing the convenience store industry but all essential industries, as he was the only business witness.
In addition to operating Kwik Chek, which has 47 convenience stores in Texas and Oklahoma, Smartt also is 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. In his opening statement to the committee, Smartt stated, “I am a retailer, wholesaler and distributor. All my businesses are considered ‘essential’ and have remained open during the COVID-19 pandemic.”
Smartt shared the concerns of businesses around the country who feared they would be targeted by plaintiffs’ attorneys for staying open during the crisis, even though they were asked to remain open to serve the public. “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 that stayed open,” he said.
When the Department of Homeland Security designated a list of industries as “critical infrastructure,” the agency wrote that these businesses had “a special responsibility to maintain their normal work schedule.”
Convenience retailers rose to the occasion and strived to stay open during stay-at-home orders and provide for their communities, including first responders and frontline workers, with much-needed food and fuel. However, remaining open during the crisis 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.
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 and reevaluate how Kwik Chek is approaching and responding 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.
Senator John Cornyn (R-TX) commended Smartt for taking action to protect employees, customers and the community, which should be considered as liability protection legislation is drafted, Cornyn said. “If what we do doesn’t work for people like you and your business, it’s not going to work for anybody.”
Smartt encouraged Congress to pass legislation 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 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
- 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
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 Senator 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, such as different mask requirements for drivers passing through multiple counties with varying degrees of personal protective equipment 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 acted in good faith, but the industry is not looking to protect bad actors.
We know that some plaintiffs’ attorneys will look to take advantage of the crisis and file claims against businesses that stayed open.
“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.
“Mr. Smartt, you’ve become the gold standard” for how businesses are protecting their employees and customers, said Chairman Lindsey Graham.
Smartt would tell you that his experience is not unique to the convenience industry.
“It was an honor to represent the convenience industry before Congress. 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,” stated Smartt. “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 that never closed and did the best they could in the midst of this unprecedented, highly contagious virus.”
NACS continues to advocate for federal legislation that provides liability protection for businesses who have acted responsibly from claims related to COVID-19 exposure. Senate Majority Leader Mitch McConnell (R-KY) said Congress will take action on the next stimulus package when Congress returns from the Independence Day recess. He has said that reasonable liability protections for businesses are a top priority. To reach out to your member of Congress and urge them to pass liability legislation, visit www.votervoice.net/NACS/Campaign, or email [email protected].
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