On high alert: Running a retail business in the age of the COVID pandemic

Throughout the pandemic we’ve seen many cannabis companies, deemed essential, remain operational. Others across the legal cannabis landscape have struggled to reopen. Whether still open or reopening, cannabis retailers must carefully and continually revamp their retail stores and policies to stay in compliance with state and local laws, while helping to prevent the spread of communicable illnesses to their customers and employees.


Considerations for Retailers

Cannabis retailers face many of the same questions as other retailers, including customer access. How will they limit customer count to ensure proper social distancing and compliance with state and local health and safety orders? Can they legally move any operations outside to a patio or sidewalk? How do they decide how many customers are allowed at a time? Who monitors and enforces the rules? What happens if an employee tests positive for COVID-19? How do retailers ensure customers wear face coverings? If customers refuse to wear a mask, will they require those customers to leave — and what if they refuse to leave? How will retailers enforce social distancing among customers inside the store?

While the questions seem endless, continuing surges of COVID-19 cases in many states necessitate that cannabis companies carefully consider and implement — and remain flexible enough to modify — policies and procedures that answer these questions while protecting employees and customers.

Staff safety policies and training are important requirements for operating safely during and after the pandemic. In addition to training employees on customer access issues and how to properly wear a cloth face covering that covers their nose and mouth, retailers need to train employees how to properly clean and sanitize the retail store.

Even if hiring an outside service to do robust nightly or weekly cleanings, there is still a need for regular cleaning throughout the day. The Centers for Disease Control and Prevention has issued detailed guidance on how to properly disinfect and clean surfaces and spaces, and retailers should adhere to this guidance. The Environmental Protection Agency published a list known as “List N,” identifying disinfectants with proven efficacy against COVID-19. Having employees clean in plain view of customers also may help customers feel safer and improve the overall success of the business.

Cannabis retailers also must consider revamping their stores to accommodate the need for social distancing. The CDC and other public health agency guidelines call for retailers to implement measures that permit physical distancing of at least six feet between customers, and between employees and customers, which may include removing fixtures and inventory from the floor. Retailers also should consider installing floor markings, colored tape or signs to indicate where customers should stand when waiting to browse and purchase merchandise. Installing Plexiglas barriers at registers and providing curbside pickup, where permissible, are also good ideas.

Cannabis retailers should also implement the “Look, don’t touch” motto, not allowing customers to handle merchandise prior to purchase, and instead relying on catalogs or display cases.

When customers are ready to pay for and collect their merchandise, cannabis retailers should make the experience as touchless as possible for both customers and employees. Offering hand sanitizer or hand washing stations for entry and exit from the store should also be considered.


Smoke Rooms or Lounges

Cannabis retailers that have smoke rooms or lounge areas face additional hurdles. As a preliminary matter, cannabis retailers should confirm whether, as shelter-in-place orders slowly lift, opening smoke rooms is allowed. Even if they are allowed to open, smoke rooms by nature counteract some preventive measures, like wearing cloth face coverings and allowing exhaled vapors to mingle where they might be re-inhaled.

Just because your smoke room is permitted to open doesn’t mean it is practical or makes financial sense. Perhaps the space should be remodeled to improve air circulation and filtration, or be moved outside. Prior to opening a smoke room, a retailer must consider whether it can do so safely, as all businesses have an obligation to protect employees and customers.

After reviewing the most recent state, county, city and public health guidance, if a cannabis retailer decides it is safe to open a smoke room, it should develop additional policies and training for employees on social distancing, sanitation, personal protective equipment and other safety requirements, as well as ensure employees are properly trained prior to opening.

Retailers opening smoke rooms should also develop written guidance and signage for customers, outlining the rules for visiting the space. Requiring an appointment for all smoke room visits may help prevent overcrowding. Informing customers that cloth face coverings and wellness checks of customers will be required before entry into the smoke room is recommended.

For those wellness checks, cannabis retailers should also prepare a policy regarding the refusal of service to customers displaying symptoms consistent with COVID-19 — ensuring that the policy is communicated to customers in advance, and that it has been vetted for possible customer privacy concerns. Smoke room seating should be reconfigured to comply with physical distancing requirements, and party size should be limited to a small number of people, preferably from the same household. Again, cleaning remains extremely important. Any surface in a smoke room that customers contact (such as tables, chairs and counters) will need to be properly sanitized between each party.

The decision to continue operations or to reopen cannabis retail stores is not an easy one. Some states that softened shelter-in-place orders have had to put the brakes on reopening plans after experiencing resurgences of COVID-19 cases.

Cannabis companies have had to navigate an already fraught economic and regulatory landscape. Unfortunately, that backdrop has become even more complicated in the wake of the pandemic, but cannabis retailers that are prepared to operate safely will hopefully reduce risk and keep their customers and employees healthy.

Alison B. Torbitt, a partner with Nixon Peabody LLP, co-leads the firm’s Food, Beverage & Agribusiness team. She counsels business and industry clients on compliance with federal, state and local laws, as well as defending against regulatory enforcement and third-party disputes.

Hillary Baca, an associate with Nixon Peabody LLP’s Labor & Employment group, has experience representing employers in both federal and state court and before administrative agencies. She advises employers on complex employment and traditional labor matters, working with clients across a broad range of industries.




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