Retro-Fitting Reservations: The Re-Opening of Restaurants Amidst the COVID-19 Crisis

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The restaurant business, a staple of American life. Eating out offers the opportunity to skip the cooking, be waited on and enjoy a variety of foods you would not otherwise prepare at home. Restaurants also provide the venue for those special occasions with friends and family - birthdays, anniversaries, graduations, and other memorable events. The establishments providing these services are known not just for their food, but for their ambiance, entertainment and social value. However, as the COVID-19 Coronavirus began impacting the United States, governments of the various states immediately took action to stem the spread of the virus. First and foremost, social distancing measures were implemented to ensure that individuals maintained a "safe and healthy distance" from one another - this required restaurants to immediately close their doors to the public. During the pandemic, restaurants began to adapt and allowed patrons to purchase food "to go", albeit via delivery or pick-up, but pick-up mostly required people to remain outside while employees, donned in surgical masks and gloves, brought the food to your car. Where does this leave us now? As the various states begin to "re-open," will restaurants return to what we consider "normal" or will the dynamic of the restaurant industry change in an effort to keep its employees and customers safe, and prevent liability for the unintentional transmission of COVID-19 or any other disease? After all, eating is one activity that cannot be accomplished whilst wearing a mask.

As states begin to allow restaurants and other food establishments[1] to re-open, there will be guidelines and restrictions set in place by each respective governmental entity, albeit at the state or local level. Aside from adhering to the guidelines and regulations enumerated by its governing entity(ies) food establishments, generally, should also consider reviewing other guidelines, as set forth by inter alia, the Centers for Disease Control ("CDC"), Occupational Safety and Hazard Association ("OSHA"), and the National Restaurant Association ("NRA"). In an interview with Bret Thorn from "In the Kitchen," Mandy Sedlak, the food safety and health manager for Ecolab's Ecosure division, offered health and sanitation steps restaurants may want to consider as states begin to allow the re-opening of restaurants. Ms. Sedlak stated that restaurants need to focus on "keep[ing] [its] guests, managers, employees and families safe by building consumer confidence." She indicated that consumer confidence can be built and maintained not just by "being safe" but also being "seen as safe."

Restaurants separate themselves into two areas, the dining area/bar (front of the house) and the kitchen/prep area (back of the  house). These areas, for the purposes of this note, need to be defined as the cleaning requirements differ, considering the back of the house contains items on which food is prepared and cooked, as compared to the front of the house where patrons are seated and served and the food is consumed.  

Front of the House

Ms. Sedlak suggests that all hard, non-porous surface and high touch points (e.g. doorknobs, door handles and push plates, railings, light- and air-control switches, faucets, toilet flush levers and chairs) be cleaned and disinfected at various times throughout the day with a disinfectant cleaner recommended by the Environmental Protection Agency (EPA). Further, it has been recommended that, in lieu of having patrons wait for their table in a designated "waiting area" or lobby, restaurants should consider utilizing text messages to alert their clientele that their respective tables are ready, as this will avoid large gatherings from occurring. Ms. Sedlak also suggests that restaurants can "re-vamp" their expected occupancy and plan seating charts well in advance of a lunch/dinner service, allowing for the "phase-in" of guests in order to keep a six (6) foot distance between parties. These rules are currently guided mostly by fire safety rules, rather than by public safety measures.

Moreover, restaurants can take a lesson from the retail stores that have remained open through the pandemic and designate certain points of entry as "entrance and exit only" locations in order to further reduce the face-to-face exposure the public would endure in visiting the establishments. In ensuring the safety of employees and guests, Ms. Sedlak recommends: maintaining distances between guests and staff, where a restaurant is able to; increasing the frequency of cleaning, sanitizing and disinfecting; and using other risk mitigation techniques such as those published by the CDC and/or other public health authorities. In furtherance of this, it is advisable to have the staff use statements such as "excuse me while I step away to wash my hands, I will be right back." This will not only ensure cleanliness but build consumer confidence in the establishment. Ms. Sedlak also provided that restaurants should conduct a wellness check (i.e. temperature check) of their staff upon arrival to the establishment in order to ensure that no staff member is symptomatic. Further, in order to "be seen" as an establishment concerned for the safety of its patrons and staff, a restaurant may consider increasing the frequency of its restroom checks to re-stock soap and paper towels in an effort to keep up with the increased frequency of hand-washing. Hand sanitizer may also be provided at hand-washing sinks as well as in the restroom for guests. 

Back of the House

In the area known as the "back of the house" (i.e. kitchen, dishwashing and prep area), cleanliness is even more important than it is in the front of the house as raw food is being prepared and cooked and there is a greater potential for illnesses borne out of cross-contamination effects. Further, there are specialized pieces of equipment (e.g. stove, mixer, refrigerator, walk-in coolers, prep tools, and pots/pans) which require different types of cleaning so that the respective equipment is not damaged or compromised. In order to ensure proper cleaning of such equipment, Ms. Sedlak recommends following the standard protocol and directions provided with the equipment. However, in order to further reduce the potential of contamination[2] and/or infection, a restaurant would be well served to not simply clean but disinfect all "high touch point" surfaces such as door handles and equipment knobs. Ms. Sedlak further recommends that restaurants limit menu offerings in order to ensure that the preparation and cooking of foods can be conducted at safe distances of at least 6 feet. Moreover, all "back-of-house staff" should be encouraged, if not required, to wear a face covering, such as a surgical mask, when preparing and cooking the food. Dr. Roger Detels,  Dean Emeritus at UCLA School of Public Health asserts that "it would not be a bad idea for the cook staff [to wear a face covering as] they're actually bending over the food. And as they dish it all up and put it on the plate and put it out to be picked up by the waiters, there is an opportunity for the respiratory droplets to travel, because the food is not held more than six feet away [and] very few people have six foot arms." The F&W Pro Guide to Coronavirus: What Should Restaurants Know; Chandra, Gowri, Food  and Wine Magazine, April 20, 2020. Dr. Detels understands, however, that this might be an operational challenge for a variety of reason including, but not limited to the discomfort of wearing a stuffy mask in an already hot and humid kitchen environment and the need to be in constant communication with other staff members. However, Dr. Detels believes this is a necessary evil to combat the spread of the virus. 

Conclusion

By adhering to local rules and requirements regulating the conduction of a food service establishment in conjunction with utilizing the guidance set forth by (inter)national agencies such as the CDC, WHO[3] and NRA, restaurants will not only meet, but will exceed the standard of cleanliness and social distancing necessary to raise a strong defense to any claim of negligence borne out of a diner's or employee's contraction of the COVID-19 virus.

Restaurants are uniquely situated as a business in that they experience a constant flow of patrons in short windows of time. This constant "turnover" requires patrons to wait for other guests to complete their meal before having the ability to dine, and requires staff to conduct cleaning measures in between dining experiences. Notwithstanding the short amount of time already provided for these cleaning measures, greater, and more detailed measure of cleaning, which may take a longer period of time, now must be conducted in order to mitigate any potential liability. Gone are they days of a quick tabletop clean and sweep of the floor. In response to the COVID-19 pandemic, tabletops, chairs, seat cushions, booths, as well as other areas around restaurant seating (e.g. walls, partitions, and anything that may have been touched by another patron, must be cleaned and disinfected prior to the next guest's visit. These measures may take time, but customers are understanding and, according to Ms. Sedlak, would prefer to spend time waiting and seeing the staff clean meticulously than to be rushed to a potentially infected seat.

[1] i.e. ice cream parlors, hot dog vendors, and other establishments that serve food but do not have a dine-in seating option for customers

[2] Recent studies conducted indicate that the COVID-19 virus can remain alive on raw foods

[3] The WHO has released its "Operational Considerations for COVID-19 Management in the Accommodation Sector."  A copy of these guidelines may be found at: https://apps.who.int/iris/bitstream/handle/10665/331638/WHO-2019-nCoV-Hotels-2020.1-eng.pdf

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