Reopening your indoor dining? Here’s how to mitigate your restaurant’s liability | Opinion

Between the time indoor dining in Miami-Dade was shut down on July 8 and the time it reopened on Aug. 31, there were thousands of COVID-19 cases in the county. Hopefully the worst is behind us, but an unavoidable truth is that the virus is still prevalent in our community — as of Friday, the number of confirmed cases was more than 165,000 — even as restaurants are welcoming patrons back inside their doors.

For a restaurant owner, the survival of your restaurant (and the entire industry) depends on re-opening to the public, and of course, continuing to stay open.

With the stakes so high, what steps can you take to mitigate your potential exposure from your own employees, guests and local government and city officials?

FOLLOW THE RULES

The first piece of advice is perhaps the simplest: Follow the rules.

As it relates to indoor dining, Miami-Dade County requires the following: no more than 50% capacity in your establishment; a per-table limit of six people; guests wear masks (unless eating or drinking); no bar seating; doors/windows remain open; and air conditioning turned on in order circulate airflow.

Surely the easiest way to receive a fine or have your establishment possibly shut down is to not practice these procedures.

Remember, in a world where Instagram can bring you to 10 different establishments in a matter of minutes (from the comfort of your own home), it’s not that difficult to discern whether you’re following the rules.

Additionally, should you opt to ignore these mandates and there ends up being an outbreak at your establishment, you’ve potentially engaged in some form of negligence — by which you could arguably be susceptible to liability.

ESTABLISH OPERATIONAL PROCEDURES

The second piece of advice is to create tight operational procedures to limit exposure between your employees.

This is important for two reasons: You want to foster a safe environment where you’re doing as much as reasonably possible to mitigate the potential spread of the virus. And should there be an outbreak and there’s a question of liability, you want to have adequate policy and procedures in place to quell any potential investigation and/or inquiry from a third-party.

Some recommended measures include:

 Masks and gloves: Provide PPE to your employees, and reiterate the requirement that all restaurant employees must wear masks and employees directly involved in food preparation wear gloves.

And hold your employees accountable for any violations. Make the requirement mean something.

Employee social-distancing: Limit the number of employees in a food preparation area at a time, and create group/teams to reduce and discourage unnecessary interaction between them. This philosophy is likely counterintuitive to your restaurant’s traditional culture and foundation, but re-directing these values temporarily can have a positive impact on the continued safety of your team and guests.

Temperature checks: Employers can have their employees self-monitor their temperature at home before their arrival and report whether their temperature is above or below 99.5 degrees F.

Or, take your employee’s temperatures through a touchless/infrared thermometer before they enter the restaurant. (Remember, restaurants are still required to comply with all applicable laws, including HIPAA when engaging in such procedures.)

Although this isn’t a fail-safe solution because of asymptomatic carriers, it’s still a simple threshold layer of protection.

LIMIT EXPOSURE

Finally, perhaps the most difficult question to answer is: What can you do to mitigate potential exposure to, and from, your guests?

How would you feel as a guest at a restaurant if your temperature was taken right before you entered the restaurant? Is it practical right before you give guests a menu, to also ask them to sign a waiver absolving your restaurant from any and all liability, including any claims of getting COVID-19 while dining at the restaurant?

Obviously, those are intrusive and not particularly realistic requests, and don’t align with the “hospitality” principles that makes your establishment a trusted destination for your patrons.

So, I would argue that the best way to mitigate potential exposure is to: follow the rules, and create operational procedures. These should directly limit potential exposure with your employees and guests while dining in your establishment.

Take these precautions over the next few months to not only do your part to stop the spread in the community, but also mitigate any legal exposure to your restaurant.

Andrew Cromer is a partner with the full-service boutique law firm of AXS Law Group in Wynwood. andrew@axslawgroup.com.

This story was originally published September 23, 2020 at 6:00 AM with the headline "Reopening your indoor dining? Here’s how to mitigate your restaurant’s liability | Opinion."