On May 12, 2020, California Governor Gavin Newsom announced California's guidelines for reopening restaurant dining rooms, along with a checklist for restaurant operators. The guidelines include steps to protect workers and the public upon reopening, and they require the local County Health Department to seek approval from the State of California before dine-in restaurants reopen within the county.

Here are the when, who, and what of the restaurant dining reopening guidance.

When May Dining Rooms Reopen?

On May 7, 2020, the California Department of Public Health issued a memo to California county governments setting criteria for entry into the "Stage 2" phase of reopening. California issued industry-specific guidance for businesses to follow.

Restaurants (and shopping centers) are among the businesses included in "Stage 2" with a reopening timeline that requires County Public Health Department approval, referred to as a "county variance." The guidelines are clear that dine-in restaurants "are not permitted to open statewide but may be open in counties that have received state approval." Local health jurisdictions that meet the criteria set forth by the California Department of Public Health and follow the process in the county guidance may move further ahead in Stage 2 of the resilience roadmap.

The county variance requirements are rigorous. The California Department of Public Health memo requires that a "determination must be made" at the county level that the "prevalence of COVID-19 cases is low enough to be swiftly contained." For restaurants to reopen their dining rooms, the county must attest to (1) no more than one COVID-19 case per 10,000 in the past 14 days; and (2) no COVID-19 death in the past 14 days. Only the most rural California counties have filed county variance attestations that they meet the readiness criteria to open restaurant dining rooms.

Who Can Reopen?

The guidelines are clear that only establishments "offering sit-down, dine-in meals" can reopen, and that "brewpubs, breweries, bars, pubs, craft distilleries, and wineries" may not reopen unless they offer such meal service. The guidelines state that "[a]lcohol can only be sold in the same transaction as a meal."

For establishments that do not currently offer sit-down meals, the guidelines permit contracting with a food vendor to provide meal services, provided those establishments sell a meal as part of any alcohol transaction and follow the general rules applicable to sit-down restaurants. Unclear is whether the limitation on alcohol sales applies to dine-in restaurants as well.

What Are the Primary Guidelines for Reopening?

The guidelines are lengthy and detailed, and the full details are beyond the scope of this article. The key provisions are:

  • Encourage Off-Site Dining. Restaurants are directed to "encourage takeout and delivery service whenever possible."
  • Workplace Specific Written Plan. Restaurants must establish "a written, worksite-specific COVID-19 prevention plan at every location," train employees on compliance with the plan, and regularly evaluate compliance with the plan.
  • Employee Training. The guidelines provide extensive topics for employee training, ranging from at-home self-screening, to proper handwashing and use of face coverings, to the importance of physical distancing.
  • Individual Control Measures and Screening. Restaurants should either provide temperature/symptom screening for employees, vendors, or contractors entering the establishment, or require employees to self-screen at home. Restaurants should provide personal protective equipment to employees and ensure its use at the establishment. They must "take reasonable measures," including posting "highly-visible" signage to remind the public to use face coverings and practice physical distancing.
  • Cleaning and Disinfecting Protocols. The guidelines are extremely detailed when it comes to restaurant cleaning and disinfecting measures. Notable considerations for operations and branding include:
    • Menus should be disposable or digital—or otherwise disinfected before and after customer use.
    • Restaurants must discontinue pre-setting tables with glassware, cutlery, etc. These items must be supplied individually to customers as needed.
    • Restaurants must suspend use of shared items such as (1) condiments, salt, and pepper shakers, which must be provided in single-serve containers; (2) self-service areas; (3) self-service machines; and (4) shared entertainment items.
  • Physical Distancing Guidelines. The guidelines on physical distancing are extensive. In general, restaurants are directed to prioritize outdoor seating and curbside pickup, with various suggestions designed to minimize the amount of time customers spend inside an establishment. Several key mandates include:
    • Discontinuation of customer seating in areas where six-foot physical distancing cannot be maintained from customers or employees.
    • Installation of physical barriers or partitions in areas, such as cash registers and host stands, where six-foot physical distancing is difficult.
    • Queue areas must be marked for appropriate physical distancing.
    • Bar areas should remain closed to customers.
    • A single table can only be comprised of members of a household unit or patrons who ask to be seated together.
    • Kitchens should be reconfigured to maintain physical distancing or, where not practical, shifts should be staggered and work performed in advance.

While California has set forth a path to reopening, it is not clear or consistent across the state. Many of the guidelines are stated in mandatory terms whereas others are stated as best practices. And some state and county guidelines may be inconsistent with one another. Restaurant operators are encouraged to review the state and county guidelines in consultation with their management teams and outside counsel to assure compliance.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.