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Bosses stretch the definition of who is ‘essential’ – and workers take the risk

By POLLY MOSENDZ AND ANDERS MELIN | Bloomberg | Published: April 9, 2020

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“The bearer of this letter,” the document says, “is providing life-sustaining and essential services.”

That depends, of course, on how you define essential, a word some businesses are trying to stretch as far as they can.

Copies of the “travel authorization letter” were distributed to employees of Leslie’s Poolmart Inc. to display if they’re pulled over for violating shelter-in-place orders when they’re on the way to their shifts. They are vital workers in the coronavirus pandemic, according to Leslie’s, because the chain sells chemicals that can be used as alternatives to hand sanitizers and because swimming pools that aren’t properly cared for can be health hazards. Many of Leslie’s more than 900 locations remain open.

Craft-supply chains Hobby Lobby Stores Inc. and Jo-Ann Stores Holdings Inc. have maintained they’re essential, too, because they sell materials for makeshift face masks. GameStop Corp. was criticized after it resisted closure orders by contending some of its products, including keyboards, are necessary for people working from home.

It has been up to state and local authorities to set concrete operate-as-usual limits. And lawyers have found loopholes and companies have lobbied, fighting to keep at least some revenue coming in while much of the U.S. economy has ground to a halt.

There is wide variety in how aggressively the rules are issued and applied. Law-enforcement authorities are overwhelmed, grappling with new pandemic-response roles and increasingly short-staffed as officers fall ill. And businesses often don’t know which way to turn.

“We are trying to do what’s right based on a situation that nobody has been in before,” Zach Toth and Chris Brown said in an email. They own Benny’s, which has pizza restaurants in Pennsylvania and four other states.

Some businesses simply have declared themselves essential on their own say-so. Their workers are both grateful to have jobs and worried about being exposed to the deadly virus and then passing it on to family members at home. There are no easy answers.

“It is a constant balancing act between protecting their employees and keeping their business running so their employees — and the owners — have jobs,” said Kabrina Chang, a clinical associate professor of business law and ethics at Boston University. “We just have to keep trying our best to do the right thing, which gets harder and harder the more precarious and desperate people and businesses feel.”

• Retailers and service providers: These are at the center of the what’s-essential debate and the patchwork of rules and levels of enforcement.

At H&R Block Inc., company lawyers determined its branches can stay open because of its tax-preparation work and because it sometimes extends lines of credit, both of which authorities in many jurisdictions have deemed crucial. One employee in Washington state said many seasonal workers, including colleagues with weakened immune systems, are worried, given the number of customers they come in contact with each day. They have not been offered additional pay to compensate for the added risk, said the person, who asked not to be named for fear of being fired.

Angela Davied, an H&R Blockspokeswoman, said the company “has changed its approach entirely” to protect everyone. Clients are encouraged to use its virtual or drop-off services. Chairs have been removed from lobbies to discourage crowding, she said, and meetings with tax professionals happen with the customer and the preparer in different cubicles.

As for GameStop, it ultimately decided to offer curbside pickup only. Last week, it closed all outlets in Massachusetts after authorities ordered one of them, in Boston, to be shut down, according to the Boston Globe. Hobby Lobby on April 3 furloughed most of its 43,000 workers after officials in four states moved to shut stores down for defying stay-at-home orders, while Jo-Ann keeps some outlets open with limited capacity, also offering curbside pickup.

Other companies also have raced to emphasize that they carry essential items. Ollie’s Bargain Outlet Holdings Inc., a discount- and overstock-goods retailer with more than 300 stores but no online sales, recently stocked a few dozen Lysol wipe containers and added a snack-food aisle at an Ohio location, according to an employee who also asked not to be cited by name for fear of being fired. Full-time staff have been offered an extra $1.50 per hour, while part-timers get an extra $1, the person said.

In New Jersey, about a half-dozen Leslie’s pool-supply stores were shuttered after visits from police, according to an employee. A Leslie’s spokesperson didn’t respond to a request for comment on that but said in an email that they “remain open in states where we fit under the description of an essential business.” In-store traffic is limited, she said, and curbside pickup is encouraged.

Ollie’s said last month that more than 20% of its inventory qualified as essential. Stores have been boosting offerings of these items, according to spokesman Tom Kuypers, who added that officials in several communities have concluded the chain meets the local criteria.

When it comes to lobbying, car dealerships have been aggressive, saying the suspension in many places of public transportation and their emergency-maintenance services make them critical.

They’ve largely been successful. AutoNation Inc., the biggest dealership chain in the U.S. with more than 300 franchises in 231 stores, provides gloves and Clorox Total 360 System equipment to disinfect cars that come in for service or trade-ins. Still, employees are anxious, said a Florida manager who asked not to be identified because he isn’t authorized to speak to the media.

The Clorox equipment doesn’t work on porous surfaces like a car’s interior, he said, and it’s hard to keep the six feet of social distancing space when customers come in. Two employees have quit over the concerns, he said.

The company is doing “everything in our power” to protect staff, providing masks and gloves as quickly as it can obtain them, said Marc Cannon, an AutoNation spokesman. He said the stores are important during the pandemic, selling cars to those who no longer feel safe using rise-sharing and repairing and sanitizing vehicles, including for first responders. “We’ve got people coming in who need these services.”

Food: It’s an obvious essential, but even feeding Americans has become a contentious and confusing regulatory space in the COVID-19 era. Few restaurants offer dine-in services, so business has turned to delivery, pick-up and creating makeshift grocery aisles. In Los Angeles, some eateries put pantry items up for sale to make extra money. The public-health department ordered them to stop. Then, just days later, restaurants were allowed to sell those items as the city realized how difficult it would be for many to survive without more income.

The owners of Benny’s, the pizza chain, said it allows employees who don’t feel safe coming to work to put their positions on hold and to return to paid jobs at a later point. In the meantime, it has stocked toilet paper and paper towels in some of its restaurants for patrons who can’t find any in stores.

“The sole purpose of each day is to keep our 250+ employees safe and getting a paycheck,” the owners said in the email. “The goal is everybody getting through this as quickly and safely as possible.”

In Cassville, Mo., meat-processor George’s Inc. has stayed open as a justifiable food company, though an employee who asked not to be cited by name said it hasn’t provided personal protective equipment. This is a common concern among workers still on the job in the pandemic. In a news release it issued after being contacted by Bloomberg News, George’s said it is “actively working to secure adequate supplies of face covers for team members.” On its website, it thanks workers and says each will be receiving a $2-per-hour “appreciation bonus” through April 25.

Manufacturing: Some manufacturers maintain that essential products made or stored and shipped at one site mean other sites they own also can continue operating as usual.

Ductmate Industries Inc.’s primary customers make climate-control equipment, but it has kept factories in Pennsylvania running because some of its products also are used in heating, ventilation and air conditioning, which are considered essential.

In DeSoto, Texas, warehouse workers at NFI Industries Inc. also are required to work, though some said they question the need for the high-end washers, dryers, microwaves and stoves they’re shipping out. T.J. Lynch, an NFI spokesman, said the branch is exempt from local shelter-in-place rules and managers follow federal recommendations for workplace safety.

Even so, according to an employee who asked not to be identified, it’s almost impossible to remain at the recommended distance from colleagues during clock-in, breaks and shift meetings. Gloves aren’t given out, and onsite hand-sanitizer dispensers often run empty these days, the person said.

Construction: Developers all over the country have kept construction crews busy. WSP Global Inc. proceeded with inspection work it’s contracted to do for the School Construction Authority of New York City, a government entity, until March 31. WSP told staff to proceed with “business as usual,” according to a person familiar with the matter, though the city closed its public schools on March 16. WSP stopped work after the governor issued an executive order.

In Fort Scott, Kan., Peerless Products Inc., which makes windows and doors, told employees that it is essential because it provides construction materials to the government, hospitals and affordable-housing projects. Employees are not allowed to work from home at all, according to a memo sent by company president Coby Jones on March 26. A spokesperson declined to comment on its essential status or worker safety.

Gary Freed, a partner at Freed Grant LLC, a Georgia-based law firm specializing in business and labor law, said anyone required to be on the job has the right to demand, and should be given, protective gear.

“I would think an employer could not make an employee work within 6 feet of another employee,” Freed said. “OSHA requires all employers to maintain a safe work place — how that’s going to play out legislatively and judicially remains to be seen.”

The pandemic could well spur complaints to the Occupational Safety and Heath Administration and litigation in state and federal courts, he said.

“We are in an evolving time with an unknown enemy. We don’t really know where this is going.”

With Gabrielle Coppola.

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