California Agencies Issue Guidance for Dine-In Restaurants and Similar Establishments

Since the implementation of California's statewide stay-at-home order, many have wondered what the long-term future of restaurant operations will look like. As a part of the state's Stage 2 reopening efforts, on May 12, 2020, the California Department of Public Health and the California Division of Occupational Safety and Health (Cal/OSHA) issued a 12-page guidance document outlining baseline regulations for restaurants to resume dine-in operations (Guidelines). Of note, the Guidelines provide a concession for brewpubs, breweries, bars, pubs, craft distilleries and wineries to resume modified or full operation if they offer sit-down, dine-in meals in the same transaction as alcohol beverage service.¹

Importantly, the Guidelines do not automatically allow for dine-in service to resume statewide; operators will be able to resume service only in counties that have relaxed their local shelter-in-place orders and filed an attestation that satisfies the state's Expanded Stage 2 readiness criteria.² Additionally, given the evolving nature of shelter-in-place and associated orders and regulations, restaurants and similar establishments are advised to be prepared to alter operations as the Guidelines change over time.

The Guidelines require restaurant operators and other similar establishments to:

• create and implement a workplace-specific plan that includes a comprehensive risk assessment of all work areas and properly train all employees
• provide employees with necessary protective equipment (including disposable gloves and face coverings)
• outline and implement proper cleaning and disinfecting protocols for high traffic areas, commonly used surfaces and dining areas
• discontinue the use of communal and self-service areas, including buffets, salad bars, soda and frozen yogurt dispensers, and communal condiment areas
• implement social distancing protocols that call for the reconfiguration of dining areas, offices, kitchens to allow for 6 feet of physical distancing wherever possible and the installation of physical barriers (such as plexiglass) in areas that cannot achieve a 6-foot distance between customers and employees.

Takeaways and Considerations

What does this all mean the next time patrons walk into their favorite neighborhood spots for Saturday night dinner? Guests may be asked to make a reservation in advance, or wait in their vehicles – rather than inside the restaurant – to observe 6-foot physical distancing protocols. Physical distancing may also result in fewer tables inside the restaurant and in outside eating areas, or other physical changes to the restaurant space. Tables will no longer be preset, but instead foodware, cutlery, glassware and napkins will be individually provided. Condiments such as salt, pepper and ketchup will be provided in single-serve containers on request by wait staff wearing gloves and face coverings. Patrons will be asked to make their meal selections from a disposable menu or from a digital menu that can be viewed on their own personal electronic devices. In some circumstances, restaurants may ask patrons to order in advance to reduce time spent within the establishment. After the meal is complete, linens will be placed into a sealed bag by an employee wearing protective equipment, and the seating and tables will be disinfected prior to seating the next party.

Restaurant operators are also advised to consult with their local county health orders, Cal/OSHA Interim General Guidelines on Protecting Workers from COVID-19, U.S. Food and Drug Administration (FDA) Best Practices for Restaurants, and Centers for Disease Control and Prevention (CDC) Guidance for Businesses and Employers for additional guidelines and restrictions that may apply to their establishments.

Although the Guidelines pave the way to reopen restaurants, in returning employees to work, restaurants must still comply with federal and state accommodation, discrimination and anti-retaliation laws. Both the California Department of Fair Employment and Housing and the U.S. Equal Employment Opportunity Commission (EEOC) have issued guidance for employers on compliance with these laws, which will continue to be rigorously enforced.

Importantly, the Guidelines also place expanded responsibilities on employers to:

• regulate employee behavior at the workplace, including the duty to train employees about their personal responsibility in not coming to work if they exhibit any COVID-19 related symptoms
• provide protective equipment for food preparation and service
• conduct temperature and symptom screenings prior to allowing employees and vendors to enter an establishment
• identify close contacts (within 6 feet for 15 minutes or more) of an infected employee and take steps to isolate those infected employees and close contacts
• stagger meal and break periods while still complying with California's wage and hour regulations
• reconfigure or close break rooms to discourage employee congregation

Employers must also be aware of how these Guidelines interplay with statutory, regulatory or collectively bargained employee rights to ensure continued compliance with employee protections and rights, given that the Guidelines expressly state they do not "revoke or repeal" any employee rights. Because the Guidelines are not static and are expected to evolve as new information emerges, this will certainly present challenges for employers attempting to reconcile public health interests with the protections afforded to employees.

Notes

¹ Brewpubs, breweries, bars, pubs, craft distilleries and wineries that do not currently offer sit-down meals themselves may contract with another food vendor to do so, provided that both businesses adhere to the new Guidelines. Such establishments may serve alcoholic beverages only in the same transaction as a meal.

² Operators are also encouraged to check whether their local municipalities have implemented stricter orders than the county orders.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.