the legal challenge of reopening restaurants

Restaurants have had a heck of a hard time during the pandemic, shut down for months with some operations able to ramp up their take-out and delivery services to make up for revenue shortfalls, then reopening in-person dining across the country only to face new restrictions in many states because of a surge in COVID-19 cases. A number of states now only allow outdoor seating at restaurants while most eateries must adhere to a patchwork of state rules – from restricted seating capacity to placing tables six feet apart – in order to keep employees and customers safe.

From Tort Liability to Privacy Issues, Potential Lawsuits Abound

The legal challenges restaurants face as they reopen include everything from tort liability to privacy issues and employee discrimination. A patron or vendor, for example, can claim he/she became infected with the virus after visiting a restaurant’s premises. Although it may be difficult to prove the origin of the virus, if a restaurant didn’t implement federal, state and local guidelines and a number of customers became infected, litigation alleging negligence could have merit.  This real exposure has given rise to businesses requesting legal immunity from tort liability suits. Some states have already done so.  For example, North Carolina provides immunity to restaurants from liability for any harm caused by COVID-19. Oklahoma, Utah and Wyoming provide immunity to everyone, as long as safety rules are followed and no laws are broken. Congress is debating the business immunity issue on a national level. Employees who get sick with the virus will turn to Workers’ Compensation, with coverage addressed differently in each state.

Privacy is a real concern for restaurant owners with many of them taking employee temperature checks and some using health-tracking apps to ensure workers are not sick. Some employers are requiring workers to fill out virus-screening questionnaires or asking them to try out social-distancing wristbands that vibrate if they get too close to each other. While the goal is to keep everyone safe, there is the potential of infringing on an individual’s privacy and perhaps violating HIPAA. Civil liberties experts say it’s important for any virus tracking of employees to be voluntary. Employers should also refrain from disclosing a COVID-19 diagnosed or symptomatic individual’s name unless an employee expressly authorizes such disclosure.

Workers can also sue an employer for failure to provide a safe workplace and adequate personal protective equipment (masks, gloves, shields, hand-washing stations). Employees can also sue for failure to implement customer or visitor policies (such as required temperature checks or masks) to protect employees while working.

Potential FMLA Leave Claims

Leave claims can be made against a restaurant if an employee is unlawfully denied sick leave or family and medical leave for reasons related to COVID-19 under the Family Medical Leave Act (FMLA), the Families First Coronavirus Response Act, state and local paid leave laws, and employer sick-leave policies. The Families First Coronavirus Response Act, passed by Congress in March, provides two weeks of paid sick leave for COVID-related illness. It also provides up to 12 weeks of paid leave to employees who must stay home to look after a child whose school or summer camp is shut down due to COVID-19.

Restaurants may see a rise in disability discrimination claims from employees who do not want to return to work for fear of becoming infected with the coronavirus. Although general anxiety is not covered under the Americans with Disabilities Act (ADA), a clinical diagnosis of anxiety or depression disability is covered, particularly if COVID-19 triggers those conditions. In such cases, the employee may have the right to reasonable accommodations on the job, with the employer potentially facing a lawsuit if accommodations are not made.

It’s important for restaurants to take proactive steps to mitigate the potential of COVID-19 litigation claims. Having a return-to-work plan that keeps workers, customers, vendors, and other visitors safe is essential. Review all employment policies in place and speak with an attorney to ensure the policies address this new environment of COVID.