On April 24, 2020, Alaska became the first state to allow restaurants to reopen to dine-in customers (subject to certain precautions) since the COVID-19 pandemic began.  On April 27, 2020, Georgia and Tennessee followed suit.  Several other states have announced similar plans to reopen restaurants to dine-in customers throughout May.

Each state has its own requirements for re-opening, and many include some combination of the following restrictions: 1) workers must wear masks; 2) restaurants can only allow outdoor dining; 3) establishments can only be filled to a certain capacity (typically 25% or 50%); 4) reservation-only dining; and 5) hand sanitizer must be available at each table or at the restaurant’s entrance.

In light of these re-openings, we suggest that companies in the food retail industry consider the following, if they have not done so already:

  • Determine whether it is financially feasible to reopen if required to comply with the guidance set forth in the applicable order(s), or, if located in a state that has not yet provided rules for re-opening, consider which requirements would or would not be feasible.
  • Determine what supplies and goods will be required to reopen and develop a plan for sourcing the same.
  • Determine whether any physical modifications to the business will be required (i.e. barriers or screening between employees and customers and the spacing of payment terminal and cash registers).
  • Consider developing a process for providing temperature screening for employees who are showing signs of illness and review sick leave policies in order to encourage any employee that is feeling unwell to stay home.
  • Consider also requiring temperature screening of customers and develop a plan for the same, including how the customer will be informed of such requirement.
  • Determine, based on square footage, how many customers can be accommodated at any one time and develop a process for queuing customers outside of the business or a reservation process, if the business does not already have one.
  • Identify the measures that can be taken to continue to keep the workplace sanitized in line with CDC, FDA, and OHSA guidance documents.  For example, the FDA released its Best Practices for Retail Food Stores, and Food Pick-Up/Delivery Services During the COVID-19 Pandemic, whereby it recommends that establishments do the following:
  • Manage employee health by, among other things, instructing employees to notify their supervisor if they know they have or have been exposed to COVID-19, and frequently disinfecting and cleaning work spaces and equipment;
  • Promote employee personal hygiene by, among other things, emphasizing washing hands for at least 20 seconds and requiring employees to use gloves to avoid direct bare hand contact with ready-to-eat foods; and
  • Manage operations by always following the four steps to food safety: clean, separate, cook, and chill.

Additionally, the OSHA released Guidance on Preparing Workplaces for Covid-19, which recommends that businesses:

  • Develop an infectious disease preparedness and response plan;
  • Prepare to implement basic infection prevention measures;
  • Develop policies and procedures for prompt identification and isolation of infected people, if applicable;
  • Develop, implement, and communicate about workplace flexibilities and protections; and
  • Implement workplace controls, such as installing high-efficiency air filters and plastic sneeze guards.

The OSHA also released its Guidance for Restaurants & Beverage Vendors Offering Takeout or Curbside Pickup, whereby the OSHA recommends that restaurants offering takeout or curbside pickup, among other things:

  • Avoid direct hand-off, when possible;
  • Display a door or sidewalk sign with the services available, instructions for pickup, and hours of operation;
  • Reserve parking spaces near the front door for curbside pickup only; and
  • Mark six-foot distances with floor tape in pickup lines, encourage customers to pay ahead of time by phone or online, temporarily move workstations to create more distance, and install plexiglass partitions, if feasible.
  • Evaluate how best to implement shift-staggering of employees.
  • Determine how to best implement the social distancing requirements.
  • Develop an enforcement mechanism for maintaining social distancing in the business, including what notices and strategies can be used to maintain separation between employees or customers.
  • Document each step of the process including the internal analysis and reasons and conclusions reached, the measures the company decides to implement, and the steps taken to execute the action plan.

Bryan Cave Leighton Paisner LLP has extensive experience helping clients with all legal issues arising in the food and agribusiness industries.  We will continue to monitor developments amid the COVID-19 pandemic and are ready to help address your questions and concerns.  Please do not hesitate to reach out to the authors of this Client Alert or any member of BCLP’s Food and Agribusiness Team if you have any questions, and you can follow our ongoing COVID-19 coverage at bclplaw.com.