Employment Law Considerations as Restaurants Reopen

To the relief of employers and workers across the country, states are beginning to reopen their economies — albeit at different speeds and stages, and mostly with cautious steps. For restaurants, this means dine-in service will begin again — or will be soon — and more employees will be returning to work.

This is great news for an industry that has seen countless restaurants limited to takeout or delivery orders, if they were even able to remain open at all during the COVID-19 crisis. Still, restaurants are reopening in a different environment than a few months ago. While state regulations will vary, most owners and managers should continue to expect enhanced safety rules and unique situations.

The following is a look at just some of the considerations regarding employees that restaurant owners and managers will need to focus on in the weeks and months to come.

Paid Leave Law Still in Play

An important mindset to keep in place is that, despite businesses opening their doors once again, the current pandemic is not over. While many municipalities and states may see the “curve flatten” for positive COVID-19 cases, people are still susceptible to being infected by the virus.

Before the Coronavirus Aid, Relief and Economic Stimulus (CARES) Act was enacted in early April, Congress passed the Families First Coronavirus Relief Act (FFCRA), which put in place requirements for employers with under 500 employees to provide workers with paid sick leave and expanded family and medical leave related to COVID-19. While the FFCRA was somewhat overshadowed by the more expansive CARES Act, it will continue to have a direct impact on employers, as its provisions remain in place through Dec. 31, 2020.

See the Department of Labor’s poster briefly describing the Act and its eligibility requirements here. This poster must be displayed in all qualifying businesses.

Exemptions are Available

As restaurants reopen, the FFCRA could play a role in staffing or cost issues. For example, with schools and childcare centers still closed in many areas, workers may need to take advantage of the family leave provisions, providing up to 12 weeks of paid leave. This is a difficult situation for employees, but some restaurants, particularly smaller ones with fewer employees, may also struggle if they are required to pay for leave.

Most employers with 50 employees or fewer, however, can apply for an exemption from the requirement to provide leave. The exemption can be claimed if an authorized officer of the business, such as an owner or general manager, has determined:

• The leave would result in expenses and financial obligations exceeding revenues and cause the business to cease operating at a minimal capacity.
• The absence of the employee(s) would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge or responsibilities. For example, if a restaurant has just two cooks, if each needed to take leave, an exempt restaurant would not be required to provide it.
• There are not sufficient workers who are able, willing and qualified, and who will be available at the time/place needed, to perform the service provided by the employee(s) requesting leave, provided these services are required for the business to operate at minimal capacity.

As an important note, employers seeking an exemption must document that this determination has been made pursuant to the criteria listed. While this document does not need to be sent to the Department of Labor, it must be retained in the employer’s files.

Accounting for Unemployment

One of the more significant side effects of the shutdown is the massive surge in the unemployment rate, with record numbers of workers applying for benefits recent weeks. The CARES Act, meanwhile, helped individuals make up for lost wages by offering a $600 weekly benefit on top of their unemployment benefit, though this extra benefit is set to expire at end the of July unless a future stimulus bill extends it.

In the meantime, as a New York Times report shows, millions of unemployed workers nationwide are making more now than under their regular wage. This certainly pertains to lower-paid employees in the restaurant industry. For some who may not need employer benefits, sheltering at home a little while longer may be more fruitful, putting their employer at a disadvantage.

There are ways an employer can prompt an employee back to work. Unemployment rules differ by state, but in Pennsylvania, for example, an employer can notify the office that there is work available, which could trigger an end to the employee’s benefit. A best practice will be to clearly notify employees when work is available to them again, enumerating the options they have.

Safety Measures and Training

Even without dine-in service, restaurants that remained open for takeout and delivery orders have had to comply with strict measures for cleaning and employee safety — regular sanitizing of surfaces, wearing gloves and masks, etc. As customers return to dining rooms, there will only be more rules and an increased level of complexity for employees.

While several associations and regulatory bodies are providing helpful best practice documents for reopening, including the National Restaurant Association’s guidance, ultimately, restaurants will be responsible for following local, state and federal government regulations. It is advisable to regularly check state and local departments of health, especially, for updated rules of operation. These procedures may vary by location, but all will likely continue to follow the principles of social distancing, methods to limit contact between employees and customers, and cleanliness measures.

Texas, for example, allowed restaurants to open dine-in service May 1 with heavy restrictions: Capacity is limited to 25 percent or 50 percent for rural counties with five or fewer confirmed COVID-19 cases; bars remain closed; and only six people are allowed per table, and parties are to be seated at least six feet apart.

Some rules may be more personal, as restaurants could be responsible for checking employees’ and customers’ temperatures upon entering the building. If results from the screening mean a customer is denied entry, it may create an uncomfortable situation that the employee or their manager will need to be trained for to resolve the issue.

Regular meetings and trainings will be useful to get staff accustomed to any new rules. Owners and managers will also want to clearly document and distribute these practices to all employees. The measures can make a difference if an employee makes a harmful error, as the business could face liability if it can be proven the employee was not properly trained and the business did not follow the applicable rules.

Indeed, there are likely to be bumps in the road as restaurants welcome back diners and the rest of the country opens up for business. Close monitoring of rules and regulations, and  regular communication with employees — remotely, or six feet apart, of course — will help the process go smoothly.