Emerging Markets Law

Summary of Georgia Governor Brian Kemp’s Order Re-Opening Restaurants

Coronavirus

Earlier this week, the Governor’s office announced that restaurants in Georgia could re-open as early as Monday (April 27) UNDER certain guidelines and protocols. The guidelines and protocols weren’t released at the time the announcement was made as the Governor’s office wanted to give time for the industry to weigh in. We have some clients who will be opening on Monday – particularly in jurisdictions that have not had many cases of coronavirus. Other clients are waiting until a later date. Last night (April 23), the Governor signed an Executive Order setting forth the guidelines to be followed by restaurants during this first phase of re-opening. A summary of these guidelines is provided below. Regardless of opening date, the Executive Order’s guidelines are a valuable tool to help guide restaurants on best practices for presenting the spread of infectious disease – particularly during times of community spread. I’ve included some of the basic provisions of the Order relating to Shelter in Place so that restaurants know what is being required of the general public. Please note, this is a summary and, as such, it includes additional commentary by me and may not be quoted verbatim. For a full copy of the Order, you can pull it here.

Effective Dates:

The Order contains guidance on more than just restaurants. While the portion governing restaurants becomes effective at 12:00 A.M. on Monday, April 27, the remainder of the Order (unless otherwise noted) is effective starting May 1, 2020 at 12:00 A.M. The entire Order (as well as the Executive Order of April 8, 2020 which has been extended) will be effective through May 13 at 11:59 P.M. (Note: page 6 provides an exception to any Shelter in Place requirement in the event of an emergency. In such cases, persons are encouraged to leave their homes or residences and Shelter in Place in accordance with the rules included in the Order at a safe alternate location.)

Section II – General Definitions (Not Limited to Restaurants):

  • "Critical Infrastructure" is defined to include all workers, businesses, establishments, corporations, non-profit corporations, and organizations included in versions 1.0, 2.0, and 3.0 of Guidance on Essential Critical Infrastructure Workers released by the U.S. Department of Homeland Security on March 19, 2020, March 28, 2020, and April 17, 2020. (Note: This includes restaurants for take-out and delivery).
  • "Essential Services" are defined to include:
    • Obtaining necessary supplies and services for family or household members. . . . Preference should be given to online ordering, home delivery, and curbside pick-up services wherever possible as opposed to in-store shopping.
    • Engaging in activities essential for the health and safety of family or household members.
    • Seeking medical, behavioral health, or emergency services.
    • Activities that may preserve the health and welfare of persons within this State.
    • The transport, visitation, and regular care of family members and persons dependent on the services of others, and similar actions that ensure the welfare and best interests of persons in the State of Georgia, specifically including the elderly, children, and disabled populations.
    • Children obtaining public internet access to fulfill educational obligations.
    • Engaging in outdoor exercise activities so long as Social Distancing is practiced during such activities between all persons who are not occupants of the same household or residence.
  • "Gathering" is defined to mean more than ten (10) persons physically present at a Single Location if, to be present, persons are required to stand or be seated within six (6) feet of any other person. Therefore, groups of more than ten (10) people are permitted if their grouping is transitory or incidental, or if their grouping is the result of being spread across more than one Single Location. (Note: “Gathering” for the purposes of restaurant patrons is more specifically defined below in the Restaurant section).
  • "Necessary Travel" means travel required to conduct or participate in Essential Services or Critical Infrastructure as defined by the Order.
  • "Personal Protective Equipment" (PPE) means surgical masks, N95 masks, respirators, other facemasks, protective gloves, protective clothing, protective garments, and shoe coverings.
  • "Shelter in Place" is defined to mean that a person is required to remain in their home or place of residence and take every possible precaution to limit social interaction to prevent the spread or infection of COVID-19 to themselves or any other person, subject to the provisions and exceptions of the Order.
  • "Single Location" is defined as a space where all persons gathered cannot maintain at least six (6) feet of distance between themselves and any other person. (NOTE: There is additional language for the “Single Location” definition in the section for Restaurants and Dining Services. See Section IV below).
  • "Social Distancing" is defined as keeping space between yourself and other people outside of your home or place of residence. Persons practicing Social Distancing should stay at least six (6) feet from other people, avoid assembling in groups, avoid crowded places, and avoid large crowds.

Section III: Sheltering In Place Requirement of the Executive Order

  • All residents and visitors of the State of Georgia:
    • Shall Practice Social Distancing and refrain from Gathering as defined in the Order.
    • Are strongly encouraged to wear face coverings as practicable while outside their homes or place of residence, except when eating, drinking, or exercising outdoors. (Note: If you’re a restaurant that allows patrons to pick up “to go” orders inside the restaurant, you might consider posting signage requiring patrons to wear a face covering before entering. It’s recommended that customers be notified of this new protocol when placing their order. Even if they don’t have a formal “mask,” the face covering requirement could still be accomplished by most customers with a part of their shirt or a scarf or bandana. A backup plan should be in place for “to go” customers that don’t have a face covering that allows them to be picked up outside of the building. Under this guideline, it would also be reasonable to require face coverings of dine in customers at any time they are not seated at their table and eating or drinking.)
    • Shall practice sanitation in accordance with CDC guidelines
  • All residents and visitors of the State of Georgia who meet the criteria for higher risk of severe illness as defined by the CDC and set forth on page 5 of the Order are required to Shelter in Place within their home or place of residence.
    • Persons required to Shelter in Place are permitted to:
      • Conduct or participate in Essential Services;
      • Perform Necessary Travel;
      • Engage in the performance of, or travel to and from the performance of minimum necessary activities to maintain the value of a business, establishment, corporation, non-profit corporation, or organization not classified as Critical Infrastructure; or
      • Work in or for Critical Infrastructure if they are actively engaged in the performance of, or travel to and from, their respective employment.
    • Persons required to Shelter in Place are NOT permitted to receive visitors except:
      • Visitors providing medical, behavioral health, or emergency services or medical supplies or medication, including home hospice;
      • Visitors providing support for the person to conduct activities of daily living or instrumental activities of daily living;
      • Visitors providing necessary supplies and services, such as food and supplies for household consumption and use, supplies and equipment needed to work from home, and products needed to maintain safety, sanitation, and essential maintenance of the home or residence; or
      • Visitors received during end-of-life circumstances

To the extent practicable, visitors are required to maintain a minimum distance of six (6) feet between themselves and all other occupants of the person's home or residence. Visitors for the sole purpose of delivering items shall, to the extent practicable, deliver such items in a manner that does not require in-person contact or require the deliverer to enter the person's home or residence.

These provisions regarding visitors shall be strictly enforced against nursing homes or other long-term care facilities, including inpatient hospice, assisted living communities, personal care homes, intermediate care homes, community living arrangements, and community integration homes.

  • No business, establishment, corporation, non-profit corporation, organization, or county or municipal government shall allow Gatherings of persons. (Except for cohabitating persons) or entities defined as Critical Infrastructure.

Section IV: Restaurants & Dining Services – Re-Opening In Georgia

Definition Specific to Restaurants:

  • “Single Location” as used when referring to "Gatherings" means 500 square feet of public space. This formula shall only apply to patrons. Therefore, for restaurants, no more than ten (10) patrons should be allowed in the facility per 500 square feet of public space. In calculating the total number of public space square feet, such calculation shall include waiting and bar areas, if any, but shall not include hallways, restrooms, and spaces closed to patrons.

Restaurants and dining rooms that operate during the effective dates of this Order (i.e. at any time from 12 AM on April 27 through May 13) shall implement measures which mitigate the exposure and spread of COVID-19 among its patrons and workforce. Such measures shall include the following:

  1. Screen and evaluate workers who exhibit signs of illness, such as a fever over 100-4 degrees Fahrenheit, cough, or shortness of breath; (Note: If you are doing temperature checks of employees, be advised that this is considered a medical procedure. While the pandemic has created an exception to the prohibition against requiring employees to undergo medical procedures, there are still measures that should be taken to avoid violating HIPAA and ADA regulations – such as confidentiality of information, etc.)
  2. Require workers who exhibit signs of illness to not report to work or to seek medical attention. Per existing FDA requirements, sick employees should remain home. If an employee becomes ill or presents signs of illness at work, the operator should identify the employee's condition during a pre-work screening and send the employee home.
    1. Restaurants shall create, maintain, and follow established policies regarding when employees who have become ill are permitted to return to work. An employee with known or suspected COVID-19 must follow CDC guidelines to self-isolate for at least seven (7) days after symptom onset and end isolation only after symptoms have improved and the employee has been fever-free and/or symptom-free for three (3) consecutive days without medication before returning to work. (Note: The Ga. Restaurant Association (GRA) is working on a Restaurant Toolkit for compliance which should be helpful. Keep an eye out on the GRA website: www.garestaurants.org for updates. If you are on our list, we’ll also send that out when it’s available).
  3. Implement teleworking for all possible workers;
  4. Implement staggered shifts for all possible workers;
  5. Hold all meetings and conferences virtually, whenever possible;
  6. Train all employees on the importance and expectation of increased frequency of handwashing, the use of hand sanitizers with at least 60% alcohol, and provide clear instruction to avoid touching hands to face;
  7. Require all employees to wear face coverings at all times. Such coverings shall be cleaned or replaced daily; (Note: it’s also important to make sure that employees are properly using their PPE. You should not have employees with masks that are pulled down below their nose or that are wearing gloves all day long – once they touch a door handle, the gloves could be contaminated. There are mixed reports about glove use and some reports that suggest that frequent hand washing (assuming it’s done) is better than glove use which sometimes give an employee a false sense of cleanliness.)
  8. Discourage workers from using other workers' phones, desks, offices, or other work tools and equipment;
  9. Where possible, stagger workstations to avoid employees standing adjacent to one another or next to each other. Where six (6) feet of separation is not possible, consider spacing options that include other mitigation efforts with increased frequency of cleaning and sanitizing surfaces;
  10. Establish limit numbers to reduce contact in employee breakrooms;
  11. Prohibit handshaking and other unnecessary person-to-person contact in the workplace;
  12. Enforce Social Distancing of non-cohabitating persons while present on such entity's leased or owned property; (NOTE: While this is difficult for a restaurateur to control, you should at least ask patrons if they are from the same household before seating them together. If they are not from the same household, they should not be seated together or within 6 ft of each other)
  13. Increase physical space between workers and patrons;
  14. Limit contact between wait staff and patrons;
  15. Discard all food items that are out of date;
  16. Discontinue use of salad bars and buffets;
  17. If providing a "grab and go" service, stock coolers to no more than minimum levels;
  18. Ensure the Food Safety Manager certification of the person in charge is up-to-date and provide food handler training to refresh employees;
  19. Thoroughly detail, clean, and sanitize the entire facility prior to resuming dine-in services and continue to do so regularly, focusing such cleaning and sanitation on high contact areas that would be touched by employees and patrons;
  20. Between diners, clean and sanitize table condiments, digital ordering devices, check presenters, self-service areas, tabletops and commonly touched areas, and discarding single-use items;
  21. Use rolled silverware and eliminate table presets;
  22. Remove items from self-service drink, condiment, utensil, and tableware stations and have workers provide such items to patrons directly wherever practicable;
  23. The use of disposable paper menus is strongly encouraged, which should be discarded after each patron use. Otherwise, you must clean and sanitize reusable menus between each use by a patron. Non-touch menus are also acceptable for use.
  24. Clean and sanitize restrooms regularly, check restrooms based on the frequency of use, and ensure adequate supply of soap and paper towels at all times;
  25. Increase cleaning and sanitizing frequency of surfaces in the back-of-house. Avoid all food contact surfaces when using disinfectants;
  26. Check restrooms regularly and clean and sanitize based on frequency of use;
  27. Update floor plans for common dining areas, redesigning seating arrangements to ensure at least six (6) feet of separation from seating to seating. Utilize physical barriers on booth seating when available; (Note: Take a look at Items 28 and 37 and make sure to incorporate those requirements in your floor plan.)
  28. Limit party size at tables to no more than six;
  29. Where practical, consider a reservations-only business model or call-ahead seating;
  30. Remind third-party delivery drivers and any suppliers of your internal distancing requirements; (NOTE: Here, I would also recommend signage at the pick-up point)
  31. Post signage on entrances that no one with a fever or symptoms of COVID-19 is permitted in the facility; (NOTE: This is where you might also post signage that patrons are required to wear face coverings to enter the restaurant and at all times while in the restaurant unless seated at a table, eating and drinking.)
  32. Where practicable, physical barriers such as partitions or Plexiglass at registers should be used;
  33. Use technological solutions where possible to reduce person­ to-person interaction: mobile ordering, mobile access to menus to plan in advance, text on arrival for seating, and contactless payment options;
  34. Provide hand sanitizer for use by patrons, including contactless hand sanitizing stations when available;
  35. Do not allow patrons to congregate in waiting areas or bar areas. Design a process to ensure patron separation while waiting to be seated that can include floor markings, outdoor distancing, or waiting in cars; (NOTE: You should also consider signage at the Restrooms reminding patrons to maintain social distancing in and around the restrooms.)
  36. If possible, use an exit from the facility separate from the entrance;
  37. Mark ingress/egress to and from restrooms to establish paths that mitigate proximity for patrons and staff; (NOTE: The idea here is to create a floor plan that allows patrons to access restrooms, etc. without passing within 6 feet of seated tables.)
  38. Where practicable, take-out and curbside pick-up services should be prioritized over dine-in services; and
  39. All restaurant or dining room playgrounds shall be closed.

Sections V – IX 

These sections deal with Other Types of Businesses. To the extent the provisions of the Restaurant & Dining Section conflict with the other sections, the Restaurant & Dining Section governs for restaurants.

Section X – Enforcement

Any person violating the Order is guilty of a misdemeanor. Any law enforcement officer has the authority to enforce the Order. After reasonable notice and two (2) citations, any law enforcement officer is authorized to close a business for non-compliance throughout the term of the Order.

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