FAQ: Common COVID-19 Employment Questions for Restaurants

Waiter Holding Open Sign

Reopening Your Restaurant Post-Coronavirus Pandemic Mandates

By James Bailey

If your restaurant re-opens, you might have questions about how to legally ask or require employees to adhere to certain guidelines about health and hygiene. The current situation with coronavirus has put all of us into uncharted territory in many ways, and employment law is no exception. Although specific questions should always be referred to your legal advisor, these are general guidelines on what is, and is not, acceptable for you to ask employees.

Should I check employees’ temperatures when they get to work? Am I allowed to?

You are allowed to do so if you choose, under temporary guidance issued by the EEOC. As of March 18, 2020, employers are legally allowed to take employees’ temperatures. In normal circumstances, this would constitute a medical procedure and wouldn’t be permitted in a typical workplace.

If you decide to implement restaurant-wide temperature checks at the beginning of shifts, it’s best to have a supervisor do it and keep employees at least six feet apart during temperature checks. The results of each temperature check need to remain confidential. Failure to maintain employees’ confidentiality with what is essentially medical information could result in serious legal issues. To help protect employee confidentiality, conduct the temperature checks in an area where employees can be separated. The information is not subject to HIPAA privacy laws under the emergency pandemic declaration, but you still need to protect employees from any privacy violations.

Am I allowed to require that employees wear face masks while at work?

Yes. Unless the employee has special accommodations, you can legally require them to wear face coverings while at work. You are not permitted to specify a certain type of face covering, however; cloth bandanas, homemade masks, or other types of face coverings are acceptable. Right now, you can confidently follow CDC guidance while in your restaurant.

You are also legally allowed to require customers entering your restaurant to have a face covering.

 

Should I send an employee home if he or she has a symptom of COVID-19?

You can. If your guidelines are uniform for all employees, you are always allowed to send employees home from work if they have symptoms of any type of illness. In the case of coronavirus, the typical symptoms of fever, dry cough, body aches, or other influenza-type symptoms require us all to be more vigilant. According to the EEOC, it is not considered to be a disability-related action if the illness is like seasonal influenza or the H1N1 virus. What’s more, sending employees home if they have any of these symptoms is permitted under ADA if the illness would be serious enough to pose a direct threat – which coronavirus absolutely is.

Can I require employees to have a doctor’s note to verify it’s safe for them to return to work?

Yes, but there is some gray area here. This is true even in a non-emergency declaration, as long as the request isn’t disability-related. You will need to consider, though, that many doctors
and healthcare facilities are encouraging patients to stay home if possible. Think about acceptable forms of documentation, like electronic communications with the doctor’s office. Or, you can trust that if your employee has undergone 14 days of quarantine, they wouldn’t return to work if they still have symptoms. It’s your call.

Also, know that you cannot require an employee to stay home, nor are you allowed to require documentation if the employee doesn’t display any symptoms.

Am I allowed to enlist the help of volunteers during the pandemic?

We don’t recommend it. There are strict requirements for using volunteers under the Fair Labor Standards Act. Generally, covered, nonexempt workers working for private, for-profit employers must be paid at least minimum wage. And in that scenario, why not hire back your own employees, even at a temporarily reduced rate?

The DOL has additional rules on when volunteers are allowed. Call us with any questions.

Can I legally ask employees to do a job outside of their normal job description?

Yes, if the employee is over the age of 18. There are restrictions on the type of work that minor employees are permitted to do, but that’s true whether it’s a pandemic or not.

If my restaurant is still open and an employee takes leave under FMLA, am I required to offer paid leave?

It depends. The Families First Coronavirus Response Act (FFCRA) expanded paid leave under FMLA for coronavirus-related reasons, such as the employee’s illness, or if the employee must self-quarantine or stay at home to care for a child whose school or daycare is closed. However, if your restaurant has less than 50 full-time equivalent employees, you can apply for a hardship exemption. The paid leave, if you choose to offer it, kicks in after 10 days and you can claim payroll tax credits against wages paid while the employee is on leave.

There are many considerations with paid leave. Contact us for questions related to your specific situation.

If my restaurant is closed or will be temporarily closed in the future, are the paid leave laws still in effect?

No. You are only obligated to pay employees coronavirus-related paid leave if your restaurant is open.

Do I have to offer paid leave and let employees collect unemployment compensation?

No. This is one reason why many restaurants don’t offer paid leave because the expanded unemployment benefits for furloughed or laid off employees kick in.

There are so many pieces to consider for your restaurant.  What other questions do you have about employment issues and coronavirus? Check out these additional restaurant resources and contact us today