Restaurants facing COVID navigate shifting waters

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By John Ruch

Like most restaurants, Ray’s on the River, a fine-dining bastion in Sandy Springs for over 35 years, has been sharply focused on all the safety rules and guidelines it must follow to operate in the midst of the coronavirus pandemic. When Ray’s learned on June 3 that an employee tested positive for asymptomatic COVID-19, the restaurant began a required deep-cleaning -- but also did something big it didn’t have to do.

It went on Facebook and told the world about the COVID case.

“I think the public is entitled to know what goes on and be [made] aware of it,” said Ray Schoenbaum, the restaurant’s founder and operator of two other Ray’s locations. “We owe it to them as a service organization to do what’s right. And, you know, it’s something we all should do and be honest about it, and tell them that we’re doing everything we can to make sure that it doesn’t pass on.”

Customers who assume that restaurants and other businesses must notify them about positive COVID cases are in for a surprise. The pandemic precautions Georgia restaurants operate under are largely unenforceable guidelines that it appears inspectors are not proactively double-checking, and which do not include public notice of cases.

For restaurant owners, that means navigating an ever-shifting sea of suggestions and rules for avoiding a devastating outbreak. Beyond the basics of cleaning and distancing, the biggest practical rule is adapting quickly to maintain customer trust and confidence.

“I’ve been practicing law now for 39 years and this has been the most unique set of circumstances I’ve worked at because the law is unclear” and new ones are still in the works, said Rick Warren, a labor and employment attorney at the Atlanta office of FordHarrison who specializes in the restaurant industry.

Rules like social distancing are easy enough to figure out, Warren and some restaurant owners say. But applying bigger issues, like legal liability for COVID infections, to a particular business can be a complex puzzle. And the answer can lie somewhere between what businesses can do and what they might want to do for better customer and employee relations.

Warren said that, under a new state shield law that was to take effect by Aug. 7, it is highly unlikely that a customer could prove and win a liability case for a COVID-19 infection against a business that is making good-faith efforts to follow safety rules. But, Warren said, businesses still need to consider whether they want to cover their bets by posting a sign warning customers that they enter at their own risk.

“I’m not sure the posting in itself gives you any more protection than the law does without posting the notice,” said Warren. “I think you’re going to see businesses putting the signs up because… it will dissuade the public from filing frivolous claims.”

But at McKendrick’s Steak House in Dunwoody, another finedining mainstay, such signs have already come and gone. “We did that initially,” said Carol Conway, the restaurant’s general manager. “We’ve taken those signs down. We feel that’s intrusive.”

Instead, she said, the restaurant focused on following federal and state public health guidelines so that there is no pandemic problem to worry about. Signs she is interested in posting are those issued by the state’s “Georgia Safety Promise” campaign, where businesses can publicize themselves as following basic COVID-fighting rules.

The most complex decision of all comes when a COVID diagnosis rears its ugly head. Warren said there’s a clear trend in the questions he is hearing from his clients: “Someone has come in and they have tested positive. What do we need to do? What is the extent of what we need to do? How long do we have to do it?”

Shifting rules

Georgia restaurants currently operate under non-mandatory guidelines from the Centers for Disease Control and Prevention and the federal Occupational Health and Safety Administration. They also have been following an executive order from Gov. Brian Kemp that cover topics such as cleanliness, social distancing and employee screening.

For customers who wonder whether a restaurant or other business is really following all the procedures, however, there is little to go on besides word of mouth and experience. Warren said he has not heard of any proactive inspections of restaurants for pandemic-precaution compliance and expects that they would be driven by customer complaints if they happen. Schoenbaum said he hasn’t seen inspectors, either, and has noticed some breaches when he has dined at other spots.

“I think the government people are all busy trying to figure out stuff that they haven’t figured out yet. They don’t want to start arguments with the restaurants,” said Schoenbaum. “I’ve been to several restaurants that are definitely not in [compliance with] code.”

Violating the governor’s order is officially a criminal misdemeanor, Warren noted, and he said businesses have plenty of motivation to stick to the rules because of the economic devastation a shutdown could bring. But the flip side of no government inspections is little government help in interpreting those rules.

Warren said dealing with COVID-positive employees depends on the type of business and the situation. There is no mandate to notify anyone about such cases, he said, although CDC guidelines recommended informing coworkers who may have been exposed. Then there are wrinkles, like legal prohibitions against disclosing medical information, and, in Georgia, the possibility that a public health official can need notificaion for contact-tracing or other purposes.

“There is substantial flexibility in what employers choose to do in terms of notifying the workforce and notifying the public of a positive test result,” said Warren. He added that, while businesses have no obligation to tell non-exposed employees about a COVID-positive coworker, some might do so for a “philosophical, moral, employeerelations reason.”

A similar reasoning is followed by the restaurants that choose to inform the public. “Keeping a secret’s just going to get you in trouble, because somebody’s going to report,” said Schoenbaum. “Somebody in the kitchen’s going to say something to somebody. It can get back to you.”

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