The Dish | August 2021

The Dish

A P U B L I C A T I O N O F T H E N E W H A M P S H I R E L O D G I N G A N D R E S T A U R A N T A S S O C I A T I O N

Issue No. 08

• August 2021 • Cover Photo: Moxy

Insurance Coverage

SB 125 Becomes Law

Workforce Series Events

NH court rules that COVID-19 losses are covered for hotels.

NH brewers are celebrating the lifting of outdated restrictions.

Free classes on navigating visas and DOL hot topics.

page 9

page 14

pages 13 and 22

Inside YOUR GUIDE TO ISSUE NO. 8

6

Members Around Town

7

Kids Live Well

Discover how you can get involved with this new program

9

Insurance Coverage from COVID-19

The latest ruling from a NH court

Ready to fire up your pizzas at 900 Degrees.

The latest industry news

13 Workforce Series

Navigating J-1 and H-2B Visas

14 SB 125 Signed into

The law lifts outdated restrictions on NH's brewers

17 Lifting Basics for

Follow these tips to avoid workrelated back injuries

19 Keep NH Brewing

Henniker Brewing crafts a 6% IPA to benefit NH brewers

21 Member Q&A

Answers to frequently asked compliance questions

23 Workforce Series

An overview of hot topics from the NH Department of Labor

24 B&BS for Vets

An invitation to participate

Event: Session 1

Law

Restaurant Workers

Sporting new gear at Popovers.

Beer Trail is Here

Event: Session 2

Cover Photo by Moxy in Portsmouth.

King Kone in Merrimack living up to their name!

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NEW NH LRA member benefit!

Click he re to sig n up.

2021 Chair of the Board

Gail Batstone Owl's Nest Resort 2021 VIce Chair of Lodging

Molly Rice-Norby Woodstock Inn Station & Brewery 2021 VIce Chair of Restaurants

John Dunn Michael Timothy's Dining Group NHLRA President and CEO

Mike Somers NHLRA Director of Education and Workforce Development

Amie Pariseau NHLRA Membership Manager and Director of Workers' Compensation Trust

Samantha MacDonald NHLRA Social Media and Marketing Manager

Pamela Baker NHLRA Administration and Events Assistant

AubreyLynn Paquette 815 raised $728 for the FMAS Animal 815 raised $728 for the Shelter at their “Down for FMAS Dogs”Animal yoga Shelter at their “Down for Dogs” yoga and brunch.

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NHLRA

MEMBERS AROUND TOWN NH EATS LOCAL MONTH KICKS OFF AT WOODSTOCK INN

M/S MOUNT WASHINGTON CRUISES INTO HISTORY

I conic Lake Winnipesaukee

cruise ship M/S Mount

Washington is celebrating two history-making moments this month. First, Patricia Quinn was Photo credit: NH Business Review

The NH Food Alliance

recently named captain, becoming the first woman to hold the rank in the company's 149-year history. The vessel, which currently

kicked off NH Eats Local Month

offers scenic tours and dinner cruises, was also one of five properties

with pancakes and local syrup

named to the state's Register of Historic Places in August.

at an event at the Woodstock Inn & Brewery.

NHLRA TEAM REPRESENTS NH AT CSRA SUMMER CONFERENCE

The NHLRA's Mike Somers and

MEMBER SPOTLIGHT: INN AT GOLDEN POND

Amie Pariseau connected with state restaurant associations across the country at the Council of State Restaurant Associations' summer conference. The duo attended several sessions focused on the current needs of the industry.

Guests at this historic inn enjoy delicious breakfasts cooked to order off of their menu every

AMIE PARISEAU NAMED CTENH'S ADVOCATE OF THE YEAR

A mie Pariseau, executive

morning! The inn is also newly

director of the NHLRA's Education

renovated and striving to change

Foundation, is the 2021 CTE-NH

B&B stereotypes with modern

Advocate of the Year for her work

twists like being pet and family-

connecting CTE students to

friendly.

careers in the hospitality industry. www.nhlra.com | 6

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LEGAL UPDATE

HOTELS HAVE INSURANCE COVERAGE FOR LOST REVENUE FROM COVID-19 CLOSURES, SAYS NEW HAMPSHIRE COURT

By Christopher T. Vrountas, Esq. and Allison C. Ayer, Esquire, Vrountas, Ayer & Chandler, P.C. The COVID-19 pandemic has certainly caused substantial interruption to business these last 18 months. The legal question from nearly the beginning has been whether the business losses arising from the viral spread constitute covered “business interruption” losses resulting from a covered

cause under those insurance policies that cover losses stemming from “physical property damage”. According to the Merrimack County Superior Court in New Hampshire, that answer is “yes” depending on what the insurance contract actually says.

"In New Hampshire, the term “physical loss” does not require actual structural damage or some other tangible change to real property."

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Many companies have struggled to stay afloat since the first pandemic shut down orders came in March, 2020.

Owners have had to find new sources of revenue and have sought federal and local funding offered under emergency relief programs to pay the bills. Bankruptcies and closures have gashed through communities as harshly as the virus itself. Looking for a lifeline beyond often unreliable

government relief, many businesses have turned to insurance policies in an effort to recover some of their pandemic losses. Commercial insurance policies that include “business interruption” coverage have caught the eye of those businesses seeking at least some reimbursement for their lost revenues resulting from COVID-19. Many insurance companies have fought such claims successfully, arguing that

these types of policies did not cover economic losses caused by a virus like COVID-19. But a recent case suggests that insureds now have a fair chance to obtain the coverage and reimbursement they seek, at least under New Hampshire law.

Earlier this summer, several New Hampshire hotel operators won a suit against their insurers who had taken the position that the hotels’ revenue losses from COVID-19 were not covered by their “business interruption” insurance policies.The Superior Court in Merrimack County rejected the insurers’ argument and ruled that these policies did in fact provide coverage for losses resulting from the COVID-19 pandemic. The case is called Schleicher & Stebbins Hotels, LLC, et al. v. Starr Surplus Lines Insurance Companies, et al., and it is important because it is one of a very few favorable Court decisions for COVIDrelated business interruption coverage lawsuits filed across the country. This is what happened, and it is a story all too familiar: Plaintiffs owned and operated 23 hotels in multiple states, including 4 in New Hampshire.

As with many businesses, these hotels were forced to dramatically alter operations during the pandemic. When scientists identified the virus responsible for COVID-19 and determined that it was transmitted by close contact and possibly contaminated www.nhlra.com | 9

surfaces as well, the governors of many states, including New Hampshire, imposed measures to slow the spread. As explained in the Court’s order, on April 6, 2020, Governor Sununu ordered lodging providers to “restrict ‘lodging [to] vulnerable populations and essential workers only.” On June 5, 2020, the restrictions changed so that New Hampshire lodging facilities were allowed to accept overnight reservations from instate residents, but other limitations remained in place.

New Hampshire hotels were not allowed to take out-of-state visitors unless they had completed a 14-day quarantine.

Surrounding states also issued stay-at-home orders preventing people from traveling, further limiting the need for lodging at hotels in New Hampshire.

The plaintiff-hotels in the case had previously purchased $600 million in commercial insurance for the covered period November 1, 2019-November 1, 2020. These policies all had identical language with regard to business interruption coverage. Specifically, the policies stated that the Plaintiffs were covered for “direct physical loss or damage to all real and personal property owned, used, leased, or intended for use” by the Plaintiffs.

Seeking coverage under this provision for their losses caused by the response to the pandemic, the hotels filed an insurance claim in April, 2020.

The insurance companies

denied the claims or sought additional information from the insured hotels. In response, the hotels filed suit and won a declaratory judgment that COVID-19 had caused “physical loss or damage” and that therefore the hotels were entitled to coverage.

The decision was based largely on a unique rule applied in New Hampshire for interpreting the term “physical loss.” In New Hampshire, the term “physical loss” does not require actual structural damage or some other tangible change to real property. Rather, the New Hampshire Supreme Court has established that in order to win coverage for a “physical loss”, an insured simply needs to show a “distinct and demonstrable alteration of the insured property”. Nothing else.This standard was established in a 2015 case, Mellin v. Northern Security Insurance Company, where the property loss caused by toxic odors originating from cat urine outside the property was found to constitute such “direct physical loss” and the insureds were found to have insurance coverage.

law. Just like the odors from the cat urine in the 2015 case, the Court concluded that a “distinct” alteration of the property occurred even though the COVID-19 virus did not originate in the Plaintiffs’ properties, as the virus had been consistently found to survive on surfaces of the kind that exist in and around hotels, and as coming into contact with the property exposed to such virus resulted in a risk of contracting a potentially deadly disease. It did not matter to the court that the virus could be removed from surfaces through cleaning and disinfecting or could not be seen or touched. As for the requirement that there be a “demonstrable” alteration of the property, the court reasoned that this element had been met because the virus was found by various government authorities to be widespread in the regions in which the hotels were located and because it was detectable through laboratory testing that could determine whether the hotels’ property had been infected with COVID-19.

Applying this standard in Schleicher & Stebbins Hotels, LLC, et al. v. Starr Surplus Lines Insurance Companies, et al., the Merrimack County Superior Court said that losses caused by COVID-19 were much like the property loss from the odors from cat urine and that, therefore, COVID-19 losses met the “direct physical loss” standard under New Hampshire www.nhlra.com | 10

Importantly, the Court also rejected the insurers argument that a “microorganism exclusion” in the policies prevented coverage. This exclusion stated that the policies did “not insure any loss, damage, claim, cost, expense…directly or indirectly arising out of or relating to…[a] microorganism of any type… regardless whether there is… any physical loss or damage to insured’s property.” But the court ruled that there was ambiguity whether the COVID19 virus was a “microorganism” and such ambiguity in the context of assessing insurance coverage must be decided in favor of the insured hotels. The court did agree with the insurance companies on one issue, specifically that hotels with a “pollution exclusion” that explicitly excluded coverage for “any…[l]oss or

damage caused by resulting from, contributed to, or made worse by…[the] release, discharge, escape or dispersal of a ‘virus’” did not provide coverage for business interruption losses caused by the viral pandemic.

Exactly how much the hotels will actually be awarded remains to be determined; they claim to have sustained over $100 million in losses.

There is of course a chance that the decision gets appealed. But in the meantime, this is an important ruling for companies with business interruption coverage.

So, what does all of this mean for businesses seeking to recover for the losses sustained during the COVID-19 pandemic? The availability of coverage for lost revenue

depends on the specific language in a business’s insurance policy.

But, this recent New Hampshire decision suggests that for some businesses, those operating in New Hampshire in particular, there might well be insurance coverage for lost revenue caused

by COVID-19. Businesses should check their insurance policies for both coverage language and exclusions. If they contain “physical damage and loss” provisions the same or similar as the ones found to provide coverage in Schleicher & Stebbins Hotels, LLC (and no exclusions apply) businesses should seriously consider making a claim with their insurance company for lost revenues caused by COVID-19. It just might provide the lifeline needed.

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NH BREWERS UPDATE

Governor Sununu Signs SB 125 into Law BILL LIFTS OUTDATED RESTRICTIONS ON NH BREWERS

By Erika Rosenfeld Secretary, NH Brewers Association Board of Directors Owner, Post & Beam Brewing Co.

August began on a high note for New Hampshire brewers, who saw the signing of SB 125 into law

by Governor Sununu on August 5th. The bill allows more flexibility to craft brewers in selling their products directly to consumers by lifting a handful of overly restrictive rules that have been on the books for decades.

The Governor addressed a packed house at Deciduous Brewing in Newmarket, tipping his hat

to the many members of the brewing industry from around the state who were in attendance: “You are all inventors. You are all innovators. You are all entrepreneurs. You’ve created an entire industry!”

He applauded the passing of this bipartisan bill, continuing on to say, “They built their businesses: our job is to get out of the way and let them thrive and grow.”

As small businesses across the country pivoted their . www.nhlra.com | 13

sales strategies to adapt to last year’s quickly changing landscape, New Hampshire brewers were left with their hands tied in many ways due to outdated restrictions. SB 125 addresses some of those restrictions, for example, now allowing craft beverage manufacturers to direct ship to consumers within the state —a service that proved crucial to breweries in neighboring states during last year’s Covid lock-downs. It also lifts the cap on how many cases can be sold to an individual customer (the previous limit was one case of cans per person). It gives beverage manufacturers the right to open one satellite retail

location, and clears the way for nano breweries to continue to contract brew at larger beverage manufacturers’ facilities.

“You are all inventors. You are all innovators.

You are all entrepreneurs.

You’ve created an entire industry!"

- Gov. Sununu

While these are certainly changes to be celebrated, NH Brewers Association President Jeff Cozzens told NHPR that there is still significant deregulation needed to level the playing field between NH and its neighboring states: “I think this industry is still behind when you look at Vermont or Massachusetts of Maine, really across the board…

Our goal in the Brewers Association is to eliminate that lack of parity.”

Enjoying the jubilant atmosphere, the Governor found his place behind the bar after signing the legislation.

Pouring himself a pint of Deciduous’s delicious porter, he raised a glass to the industry and those who work so hard to keep it moving. An uplifting reminder that beer is bipartisan, and something we can all celebrate!

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Be safe with ServSafe

NHLRA's ServSafe Manager Certification Course Help your team protect against foodborne illness with the NHLRA's ServSafe training. The program blends the latest FDA Food Code, food safety research, and years of food sanitation training experience. Managers learn to implement essential food safety practices and create a culture of food safety. Certification is valid for five years and satisfies the "Person in Charge" requirement of the New Hampshire Rules for the Sanitary Production and Distribution of Food.

CLASSES AROUND THE STATE Through a third-party vendor, HRFoodSafe, the NHLRA regularly holds ServSafe training classes. Classes are offered monthly in Concord, Manchester, Nashua, and Portsmouth and throughout the year in Lebanon and North Conway.

ON-SITE PRIVATE CLASS OR EXAM If you have five or more employees, we can hold a ServSafe class or exam at your location. For more details, email Amie Pariseau at apariseau@nhlra.com.

Register or find a class near you at: https://www.nhlra.com/servsafe.html

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KEEP NH BREWING BEER TRAIL IS HERE! P e r f e c t f o r a s u m m e r a d v e n tu r e w h i l e e n j o y i n g y o u r travels around the state.

By Teresa Pominville, Director Marketing and Events, Henniker Brewing Company The New Hampshire Brewers Association teamed up with 27 craft breweries in the state to create 23 individual IPAs, each as unique as the breweries who’ve created them. Grab your Keep NH Brewing Beer Trail Map and visit 18 or more of the participating breweries to win prizes!

“Keep NH Brewing” is our contribution to the 2021 NH Beer Trail. This 6% IPA represents the collaborative spirit that is New Hampshire Beer. Our recipe includes 100% Maine Malt House malts (local!) and ascade and Hallertau

Blanc hops, both from Crosby. Head Brewer, Devin Bush describes our beer as an approachable IPA. Hoppy, but not aggressive, much like the rest of our lineup here at Henniker Brewing.

Cans drop Saturday, August 21st in our taproom, and will reach distribution the following week. You can feel good knowing that a portion of the proceeds are donated to the New Hampshire Brewers Association, a nonprofit group that advocates for small breweries here in the Granite State. www.nhlra.com | 18

HAVE A QUESTION OR CONCERN? Membership in the NHLRA means being a part of the only organization in the state dedicated to protecting, promoting, and educating our hospitality industry.

Contact us for questions or to share what issues are affecting your business. We're here for you.

GOVERNMENT AFFAIRS: Mike Somers msomers@nhlra.com MEMBERSHIP AND WORKERS' COMP: Samantha MacDonald smacdonald@nhlra.com EDUCATION AND WORKFORCE DEVELOPMENT: Amie Pariseau apariseau@nhlra.com SOCIAL MEDIA AND MARKETING: Pamela Baker pbaker@nhlra.com ADMINISTRATIVE AND EVENTS: AubreyLynn Paquette apaquette@nhlra.com NHLRA OFFICE: (603) 228 - 9585 info@nhlra.com

MEMBER SOLUTIONS Save time and money with NHLRA's endorsed service providers.

MUSIC LICENSING Members save up to 20% off music licensing fees for BMI and 10% off SESAC. HEALTHCARE SOLUTIONS Lower healthcare spending by 20% while improving employee experience through our Association Health Plan.

COMPLIANCE PORTAL Including risk management and safety tools, compliance support, and templates for training and safety manuals.

DENTAL INSURANCE Save up to 25% on dental insurance rates through our group buying program.

401(k) PROGRAM Establish a 401(k) program with minimal overhead under an NHLRA umbrella plan.

CREDIT CARD PROCESSING Receive a discount of up to 10% off of processing fees.

LIQUOR LIABILITY INSURANCE Save up to 20% off your liquor liability insurance premium.

PROPERTY INSURANCE You may be eligible for a 5% discount on property insurance.

MUSIC LICENSING Members receive an exclusive 10% discount on the subscription price and a 30-day free trial.

LEGAL SERVICES 30 minutes of free legal advice per incident, issue, or matter.

Need to retain their services? Receive a discounted rate.

WORKERS' COMP INSURANCE Our self-funded worker's comp trust returns dividends (on average) of 20-35%. www.nhlra.com | 19

RENEWALS Thank you to these renewing members in August 2021!

Atkinson Resort & Country Club Best Western White Mountains Inn Carriage House Restaurant Centennial Hotel & Granite Restaurant Chuckster's Hooksett LLC Golden Gables Inn Hanover Street Chop House Hilton Garden Inn Inn at East Hill Farm InnSeason Resorts Pollard Brook Island Hospitality Management KC's Rib Shack King Kone La Quinta Inn & Suites Labelle Winery

Lago's Ice Cream Lucky Dog Tavern & Grill Lui Lui of Nashua M.S. Walker Martignetti Companies of NH, Inc. Meredith Inn B&B Patrick's Pub & Eatery Quality Inn & Suites Red Jacket Mountain View Resort Row 34 Shaskeen Irish Pub and Restaurant Sheehan Phinney Bass & Green Tall Timber Lodge & Rainbow Grille The Foundry Restaurant UNH Peter T. Paul School of Business

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MEMBER Q&A Answered by Samantha MacDonald, NHLRA membership and workers' compensation trust director

Can an employer terminate an employee’s employment due to the employee disclosing or discussing their wage with another employee?

No. RSA 275:38 states that an employer cannot discharge or in any manner discriminate against any employee because they inquired about, discussed, or disclosed their wages. Employees may also disclose the wage of another employee if the employee has access to the wage information as a part of their essential job function and is disclosing it to another employee who does not otherwise have access to such information. The only exception is if the disclosure is because of a complaint, investigation, or hearing, including an investigation conducted by the employer.

Are Hospitality Organizations Required to Follow HIPAA? No, The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that created national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge. By law, the HIPAA Privacy Rule applies only to covered entities such as health plans, health care clearinghouses, and certain health care providers. Generally, the Privacy Rule applies to the disclosures made by your healthcare provider, not the questions your employer may ask. HIPAA Privacy and Security Rules are enforced by the Office for Civil Rights (OCR). (RESOURCE)

….but that does not preclude an organization from following federal privacy laws.

The Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and other federal and state laws regulate what employers may ask, require, or divulge about their employees personal and medical information. For example, medical information shared with an employer may not be covered under HIPAA laws, but is required to be confidential under ADA. These laws are enforced by the US Equal Employment Opportunity Commission. www.nhlra.com | 21

PROGRAM OPPORTUNITY

B&Bs for Vets By the Association of Lodging Professionals All innkeepers are invited to participate in the B&Bs for Vets program by offering a minimum of one room for one night and totally free to veterans and active military.

(Please note, the participating roperty must have commercial insurance, the required licenses/permits, and pay the applicable taxes.) Innkeepers do not need to be members of ALP to participate. The program is open to every innkeeper. Many innkeepers will offer more than one room which is encouraged.

Click here for program details and to list your property.

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16 Centre Street Concord, NH 03301 | (603) 228 - 9585 | nhlra.com