March 16, 2020 

In conjunction with the Ohio Governor’s Office, the Ohio Department of Health ordered the stoppage of on-premises food and alcohol service effective 9:00pm EST March 15, 2020. The move is designed to combat the spread of the coronavirus (COVID-19). Many states have followed suit.

The Ohio Order specifically exempts carry-out and delivery of food and alcohol (meaning beer and wine only).  The Governor has encouraged the use of carry-out and delivery as options, and for the public to continue to use local restaurants. From a moral perspective, restaurants that stay open to help ensure the public has access to food are to be commended, especially considering that most operations will lose money doing so.

Of course, nothing that has been issued to date grants any protection or immunity to restaurants for continuing operations, and as such, the general principles of liability and negligence will apply to how a food service operation interacts with the public.

National and state agencies have issued guidance, and in some cases, orders, with regard to managing the coronavirus outbreak.  Although most people have seen them, restaurants that are going to maintain an operable kitchen must remember to advise its employees, preferably in documented writing, that they must:

• Wash hands often with water and soap (20 seconds or longer) – Employees should be required to do this at regular intervals.
• Dry hands with a clean towel or air dry your hands – Restaurants should ensure that clean, disposable papers towels are available and direct employees that they be used.
• Cover your mouth with a tissue or sleeve when coughing or sneezing (and excessive sneezing or coughing should probably result in an employee being sent home).
• Avoid touching your eyes, nose, mouth with unwashed hands or after touching surfaces – Employees should be advised not to do these actions, and immediately directed to clean their hands if they inadvertently do.
• Clean and disinfect “high-touch” surfaces often – The restaurant should wipe down with disinfectant such surfaces at regular intervals, and if possible, have appropriate hand sanitizers on site and used by employees frequently.
• Continue to strictly comply with all existing regulations of the health department relative to operating a food service licensed business.

Not only should these procedures be advised, management should monitor and enforce them.

Understand, of course, that an employer can (and should) require an employee to go home and stay home if the employee has symptoms of coronavirus (or, quite frankly, is sick in any fashion).

• See OSHA Guidance for additional detail.
• See also Walter| Haverfield’s Updated COVID-19 Guidance for employers.

In her March 15^th order, Dr. Amy Acton, director of the Ohio Department of Health, found that coronavirus is “spread between individuals who are in close contact with each other (within about six feet) through respiratory droplets produced when an infected person coughs or sneezes.  It may be possible that individuals can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose or eyes.”   She also cited research to “confirm that COVID-19 is spread simply through breathing, even without coughing.”  That last finding is alarming.

This leads to one of the most significant pronouncements of the March 15^th Order regarding “social distancing.”

Physical Premises Restrictions

Per the March 15^th Order, “Lines for carry-out in these establishments must have an environment where patrons and staff maintain social distancing (six feet away from other people) whenever possible.”

Because of this and the general nature of the spread of coronavirus, a restaurant should devise carry-out and delivery programs designed to prevent the spread of coronavirus.

If possible, a restaurant still selling carry-out foods would be well-served to consider whether the delivery of that food and alcohol can be accomplished on a porch, patio, or outdoor open space on premises.  In this way, a restaurant can avoid having possible exposure to the indoors and kitchen area, it will serve as a buffer between the customer and employees, and it will prevent general congregating indoors.

In the event that a premise simply is not physically situated to allow for this kind of service, then a restaurant should consider utilizing the smallest indoor area closest to the door, confined in some fashion to keep patrons from sitting or congregating in the restaurant.

Although difficult in practice, the Director’s Order requires that patrons and staff stay six feet away from each other.  As such, employees should actively ask people in line to stay at least six feet away from each other while waiting, and a sign to that effect is advisable.  If a staging area can be situated where customers can pick up their own orders, this would be ideal.

Delivery

Like the restrictions for carry-out, delivery should be designed to minimize any contact between employee and customer. Again, payment should be made in advance over the phone, and other than handing the order to the customer, there should be no contact between persons. (The employee may even ask the customer if she wants the order left on the doorstep as opposed to handing it to her.)

In addition to these considerations about contact, restaurants should remember:

• Food can be delivered by employees or third-party services, but beer and wine cannot be delivered using third party services unless they have an H-class permit. Not a lot of third parties have that licensing.
• An employee must be 18 years old to deliver or sell carry-out alcohol.
• The restaurant should consult with its insurance agent and/or carrier to ensure that employees making deliveries are covered under liability insurance coverage (or, more to the point, that any significant increase in delivery is covered).

General Terms of Carry-Out and Delivery Business

Patrons should be advised when placing an order:

• No person showing any symptoms of illness will be served, even carryout – If you’re sick, send someone else to pick up your order.
• Credit card payments in advance over the phone will be the only payment method allowed. This will eliminate the contact involved in the exchange of cash between employee and customer.  Other than possibly handing the bag of food over to the customer, there should be no contact or exchange of items between employee and customer.   If a customer has to pay on site and the restaurant decides to accept that, then the employee should manually type in the card authorization numbers.
• Due to the increased contact that would result from a dispute about an order and the possibility of contaminated food coming back to the restaurant, the restaurant should advise that all sales are final, no returns or exchanges.
• Restaurants can and should increase their prices and are entitled to up-charge for what they are doing due to all the risk, extra procedures, increased costs, and inability to generate revenue from full kitchen use by on-premises dining. Rules of reasonableness must apply, and increased prices should be uniform to all customers.  Remember to change your 30-day price list for beer and wine at your earliest opportunity.

Other Considerations

Wine.  Remember that Ohio law defines 42 proof and below spirits as “wine”, and therefore you are allowed to sell those at carry-out and delivery.  This includes such items as Baileys, and some popular low-proof whiskeys and vodkas.  You can never sell spirituous liquor (above 42 proof) at carry-out or delivery.

Wage and Hour considerations.  Remember, as always, to keep close track of employee time with delivery work, and to pay proper compensation and any overtime.

Mileage Reimbursement for employees.   A restaurant does not have to reimburse employees for mileage driven while making deliveries PROVIDED that the employee is making sufficiently more than the minimum wage to offset the driving costs.  Remember that mandatory expenditures that an employee incurs as part of his/her job cannot cause the employee to make less than the minimum wage.  So if an employee is right at the minimum wage, then yes, the employer must reimburse.  If the wage is high enough to cover the cost of mileage incurred, then no.  Although not the required amount, the IRS standard reimbursement rate is 57.5 cents per mile.   This may be hard to determine on an employee-by-employee basis, so instituting a standard amount per delivery can suffice.

Insurance.  Every restaurant should review whether they have a business interruption or other income loss covered claim as a result of the coronavirus and its related events. In many cases, there will not be a claim for business interruption because it is not caused by “physical loss or physical damage,” or there may be a pandemic exclusion.  Regardless, the easiest initial approach is for the restaurant to request a coverage review from its broker as a result of coronavirus, and then each policy must be reviewed as to its own particulars. Coverage reviews from brokers are generally free, and are an excellent starting point for an insurance analysis.

John Neal is chair of the Walter | Haverfield Hospitality and Liquor Control group. He can be reached at jneal@walterhav.com or at 216-619-7866.