New York state has released new guidance for indoor dining as we head into the fall season and cooler temperatures, but the reality of operating under the guidance will still prove challenging for most restaurant operators once outdoor dining becomes less viable for guests.
The guidelines for indoor dining in the city include:
We're also keeping an eye on positive COVID rates, which have started to rise in certain areas in the state in the past week or so. There's always a chance that indoor dining will be delayed or paused based on the case counts, as well.
New York recently provided interim guidelines for this, found here.
Legally, the National Law Review and the Restaurant Law Center both agree that the EEOC considers temperature checks a legal and appropriate measure for mitigating transmission of COVID-19. And businesses are allowed to turn customers away who refuse to comply with temperature checks (and mask requirements, too).
In New York, businesses are prohibited from keeping records of employee or customer health data (e.g., the specific temperature data of an individual), but are permitted to maintain records that confirm individuals were screened and the result of such screening (e.g., pass/fail, cleared/not cleared). You should ensure that your records are aligned with EEOC and DoH guidelines.
One guest from each party should provide their full name, phone, and street address so that they can be easily contacted by a local department of health if necessary. You should include the date and time that the party ate, as well as the number of guests dining in the party.
Contact tracing info should be saved for a minimum of 28 days.
In most cases, you’ll do nothing with this information. In the rare circumstance that someone else was infectious during the time they were dining at your establishment, a local health department contact tracer will reach out to you for the information, then call all the guests who ate at or around the same time, and ask them for the contact information for others in their party.
Collecting information should ideally be done in a contactless way - either by having guests enter their own information when making reservations or through an online system. If collected at the host station, be sure to have clear markings for 6ft distance, and ideally a partition between the host and the guests.
Here are some commonly asked questions about guest temperature checks, masks, and contact tracing info:
Stay calm. Inform them that they are not permitted to dine indoors without complying with those requirements. Offer instead that they call or order online and have their order brought outside, for example.
Invite the guest to sit in the shade outside of the building. If possible, offer them cold water and take off any hat. Wait 5 minutes and conduct another temperature check. If it’s still above 100.4F, politely offer an alternative like contactless to-go order, or a coupon or gift card for a future order.
As a private business, you’re generally allowed (and in many cases right now, required) to prevent them from entering if doing so would put others at risk. If they have a fever or are not able to wear a mask, it may not be safe to allow them to dine indoors. Seek guidance from your legal counsel to create a clear company policy, and make sure your staff are informed. And of course, offer an alternative to anyone you turn away, like contactless delivery outside.
We can’t give you legal advice and this is a great question for your counsel. But we do know that guests and employees have welcomed direction on this topic. And that employees do truly appreciate when your guests mask up. The mask up/mask down dance while dining is challenging, but will become the new normal soon enough, like it has been for some time in other parts of the world.