With much controversy and uncertainty as well as a host of new laws and mandates, what can restaurants expect in 2021? The new year brings an array of new federal, state, and local laws and regulations that can affect your business. Staying informed has never been as critical as it is now. An article in USA Today outlined many of the latest mandates and restrictions by state. The Restaurant Law Center of the National Restaurant Association regularly updates its state-specific comprehensive Official State Guidelines for Foodservice Establishments.
COVID regulations – Most states take a similar approach to managing employee health monitoring, imposing stricter sanitation protocols, and minimizing physical contact between employees and customers. However, states and even counties vary widely, based on the severity of the pandemic in their area. General areas of regulation include:
- PPE: Most states require face coverings to be worn inside public spaces by all staff and guests (except when eating/drinking). Employers should provide and ensure workers use all required protective equipment, including face coverings and gloves where necessary.
- Employee Health Checks: Most states have regulations that employers must perform daily health monitoring of employees and send home any employee who displays symptoms. All employees are required to report any fevers of illness to a supervisor.
- Notice Requirements of COVID-19 exposure in the workplace: Several states have enhanced reporting requirements to local health authorities in the event of a COVID-19 outbreak and expand OSHA’s authority to shut down work sites deemed to be an “imminent hazard.”
- Sanitation Recommendations or Requirements:
- Hand washing is required
- High contact areas must be cleaned every two hours
- Provide all refills in a clean/unused container
- Utilize single-use paper or QR-code driven menus
- Discontinue pre-setting tables with napkins, cutlery, glassware, plate ware, etc. Use single-use items such as packets of ketchup or salt as needed
- Pre-roll utensils in napkins before use or provide pre-packed utensils
- Have hand-sanitizer, preferably “touchless” and sanitizing products available for employees and guests
- Train staff and prepare procedures for elevated cleaning and sanitizing
- Provide prominently displayed signage outlining proper face-covering usage and current physical distancing practices in use at all entrances and throughout the location
- Distancing and Occupancy:
- While some states have shut down all indoor and outdoor dining, the guidelines vary by state. The general rule is when onsite dining is allowable, and tables are distanced 6 feet apart with no more than 8 guests per table. Must adhere to local capacity limits.
- Prioritize curbside pickup to minimize the cross-flow of customers
- Designate with signage, tape, or other visual cues the social distancing spacing for employees and customers in all areas of the restaurant
- Conduct pre-shift meetings and training virtually or in areas that allow for appropriate physical distancing
- Ask customers to wait in their cars while waiting to be seated, provide alerts via mobile devices
- Payment Systems:
- Use of physical barriers such as plexiglass partitions at registers
- Use contactless payment options
Additional Labor Law changes for 2021 (varies by state):
Minimum Wage – While the federal minimum wage has not increased for over a decade from $7.25, the Congressional Budget Office has suggested raising the national figure to $15/hour by 2025. Many states, including California, implemented increases on January 1, 2021, to $13/hour for employers with 25 or fewer employees and $14 for employers with more than 25 employees. (Note: various cities and local governments may have enacted minimum wage ordinances exceeding the state minimum wage level.)
Tipping – The Department of Labor allowed a final rule that allowed restaurants to require servers to pool tips with staff that doesn’t typically earn them, such as cooks and dishwashers. For restaurants, the benefit is straightforward –the ability to narrow the pay gap between the front and back of house.
Discrimination – In California, employees have a year (instead of six months) to file a discrimination or retaliation complaint with the Division of Labor Standard Enforcement (DSLE).
Sexual Harassment Training Mandate – For many states, the law took effect on January 1, 2020, but several others (including CA) extended the required implementation date to January 1, 2021. This mandate requires all employers with more than five employees to have a written sexual harassment policy in English and Spanish. Employees must complete a 1-hour training and supervisors a 2-hour training and pass a final assessment to receive the certification.
Leave of Absence- Laws in certain states have been expanded to include companies with five or more employees instead of the previous minimum of 50 or more employees.
Worker Classification – There are three key elements used to determine whether a worker should be classified as an employee or independent contractor.
- Is the worker free from the hiring entity’s control and direction in connection with the performance of the work?
- Does the worker perform work outside the usual course of the hiring entity’s business?
- Is the worker customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed?
If the answer to all three is yes, the person can be classified as an independent contractor.
Supplemental Paid Sick Leave – While it was set to expire on December 31, 2020, some states have added legal requirements for employers in the foodservice industry to continue to provide supplemental paid sick leave as a result of the COVID-19 pandemic. To be eligible for this additional paid sick leave, the employee must be unable to work due to one of the following reasons:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
- A health care provider advises the employee to self-quarantine or self-isolate due to concerns related to COVID-19
- The employee is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19
In an increasingly difficult climate, restaurants are doing everything they can to keep their staff and guests safe and their doors open while complying with constantly-changing guidelines which can be a challenge to even the most seasoned restaurant professional! Reach out to us to see how our 30+ year history in the industry can help your restaurant not only survive but thrive in 2021.