California’s County-By-County Approach To Reopening Restaurant Dining Rooms

On May 12, 2020, California Governor Gavin Newsom announced state guidelines for reopening restaurant dining rooms. The guidelines provide California restaurants with a path to reopening while protecting workers and the public.

But, the reopening will look different across California, depending on the county. This is because the guidelines require county departments of public health to first attest to meeting certain requirements in seeking approval from the State of California before dine-in restaurants may reopen within the county. In other words, each county has to get permission from the state before its restaurant dining rooms may reopen.

The California Department of Public Health issued a memorandum to California county governments with criteria for entry into the Stage 2 phase of reopening businesses. California issued industry-specific guidance for businesses to follow.

Restaurants and retail shopping centers are the only sectors included in Stage 2 that are ‘not permitted to open statewide but may be open in counties that have received state approval.’ The approvals come in the form of ‘variance attestations’ that counties must submit for state approval. Local (often county) departments of public health must demonstrate that meet the state’s requirements in seeking approval.

The county variance attestation requirements are rigorous. A ‘determination must be made’ at the county level that the ‘prevalence of COVID-19 cases is low enough to be swiftly contained.’ A county must attest to meeting these requirements:

1. Cases Limited. No more than 1 COVID-19 case per 10,000 in the past 14 days prior to attestation submission date.
2. Deaths Limited. No COVID-19 death in the past 14 days prior to attestation submission date.
3. Employer Guidance. Guidance for employers and essential critical infrastructure workplaces on how to structure the physical environment to protect essential workers. 
4. Supply Availability. Availability of supplies (disinfectant, essential protective gear) to protect essential workers. 
5. Daily Testing. Minimum daily testing volume to test 1.5 per 1,000 residents, which can be met through a combination of testing of symptomatic individuals and targeted surveillance. 
6. Testing Availability. Testing availability for at least 75% of residents, as measured by a specimen collection site (including established health care providers) within 30 minutes driving time in urban areas, and 60 minutes in rural areas. 
7. Contract Tracing. For counties that have no cases, there should be at least 15 staff per 100,000 county population trained and available for contact tracing; for counties with small populations, there must be at least one staff person trained and available. 
8. Temporary Housing. Availability of temporary housing units to shelter at least 15% of county residents experiencing homelessness in case of an outbreak among this population requiring isolation and quarantine of affected individuals. 
9. Hospital Capacity. County (or regional) hospital capacity to accommodate a minimum surge of 35% due to COVID-19 cases in addition to providing usual care for non-COVID-19 patients and County (or regional) hospital facilities have a robust plan to protect the hospital workforce, both clinical and nonclinical, with PPE. 
10. Skilled Nursing Facilities. Skilled nursing facilities have >14 day supply of PPE on hand for staff, with established process for ongoing procurement from non-state supply chains. 

Not surprisingly, of California’s 58 counties, none of the 11 that have submitted variance attestations to the state rank in the top 20 by population. Counties with the largest populations—e.g., Los Angeles, San Diego, Orange, Riverside, San Bernardino, Santa Clara, Alameda and Sacramento—may have difficulty meeting the requirement of “no COVID-19 death in the past 14 days prior to attestation submission date.” Dining rooms in these counties will not open until then.

Even when dining rooms do open, adhering to the guidelines will be burdensome. A checklist for restaurant operators accompanies the guidelines in an effort to ease the process.

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 hand-washing and use of face coverings, to the importance of physical distancing.

Individual Control Measures and Screening. Restaurants should either provide temperature/symptom screening for workers entering the establishment, or require them to self-screen at home. Restaurants should provide personal protective equipment to employees and ensure its use at the establishment. Restaurants 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. Restaurant cleaning and disinfecting measures include:

1. Menus should be disposable or digital—or otherwise disinfected before and after customer use.
2. Discontinue pre-setting tables with glassware, cutlery, etc. These items must be supplied individually to customers as needed.
3. 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. 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. Key mandates include:

1. Discontinuation of customer seating in areas where six-foot physical distancing cannot be maintained from customers or employees.
2. Installation of physical barriers or partitions in areas, such as cash registers and host stands, where six-foot physical distancing is difficult.
3. Queue areas must be marked for appropriate physical distancing.
4. Bar areas should remain closed to customers.
5. A single table can only be comprised of members of a household unit or patrons who ask to be seated together.
6. Kitchens should be reconfigured to maintain physical distancing or, where not practical, shifts should be staggered and work performed in advance.

Bottom line: dining in a restaurant will be a new experience, and still may be a long way off for most Californians.