As of September 1, 2020, Governor Murphy’s Executive Order No. 183 permits indoor dining at restaurants and eateries with certain limitations due to the COVID-19 pandemic. Under these new guidelines, restaurants must operate at 25% capacity with social distancing between tables. They must require customers to wear a face covering unless under two years of age and many are urged to switch from physical menus to whiteboards or electronic menus and provide hand sanitizer stations.
While most safety measures have been explained very well in the Executive Orders, other problems that may come up in connection with these measures have not been and could potentially result in liability to restaurant owners.
Businesses that provide an important service to customers such as restaurants, retail stores, casinos, and hotels, are directly impacted by the new safety guidelines due to a dramatic change in the way that they must now operate to avoid fines and other penalties.
For example, Jamie Knott, owner of the Saddle River Inn restaurant in Saddle River, New Jersey (saddleriverinn.com), told us that switching from indoor dining to outdoor dining has increased the cost of doing business because of, among other things, of the need to purchase more equipment and space outdoors. Also, Jamie has had to change the way his staff operates, because of the constant need to go back and forth between the restaurant and the dining tent for food and equipment.
In addition to ensuring compliance with the new indoor dining guidelines, food service business owners must protect themselves from liability due to the risk of contracting COVID-19 by their customers and employees. Many restaurant owners have not checked their liability insurance policies for indemnification clauses, or any other language covering liability during a pandemic. While lawsuits related to liability during the pandemic are still being debated, there are steps that owners can take now to improve their chances of mitigating the risk and prevailing in such a lawsuit.
The first thing that restaurant owners should do is be aware of the current rules issued by the Governor’s Executive Orders and ensure that their businesses are in compliance. Next, New Jersey restaurant owners should be aware of the State’s standard of care owed to customers and ensure that they are always in compliance. For example, of the many requirements for restaurants imposed by the New Jersey Health Department, restaurant owners must regularly inspect their premises to ensure proper food safety and defense.
To avoid lawsuits and mitigate the risk, some businesses now require customers to sign a waiver relieving them of liability in the event that they contract COVID-19 while visiting their establishment.
Besides liability issues that may come up because of negligent safety measures, the Governor’s Executive Order does not address potential discrimination claims that could also arise as a result of an owner’s efforts to comply. For instance, the new indoor dining guidelines do not mention whether or not restaurant owners must grant access to service animals and emotional support animals in their establishments as part of the new indoor dining rules.
Generally, under the New Jersey Law Against Discrimination and the Americans with Disabilities Act (ADA), people with disabilities may bring their service animals to all “public accommodations,” including restaurants. However, this public accommodation does not necessarily include emotional support animals. Many restaurant owners may not even be aware of the distinction between service animals and emotional support animals.
The ADA defines a service dog as “a dog that has been individually trained to do work or perform tasks for an individual with a disability.” An emotional support dog is not trained to perform any particular task and is specifically excluded from the definition of service animals contained in the ADA regulations. It is important for restaurant owners to be aware that these issues could arise and it is equally important for owners to have a policy in place that we give them the greatest shield from a discrimination claim.
According to the ADA requirements, service animals must be under the control of its handler. They must be harnessed, leased or tethered, unless the owner’s disability prevents using these devices or these devices interfere with the service animals safe and effective performance of its tasks. Here are the rules when an animal is brought to the entrance of a restaurant:
- When it is not obvious what service an animal provides, only limited inquiries are allowed. Staff may ask two questions: (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform. Staff cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.
- Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.
- A person with a disability cannot be asked to remove his service animal from the premises unless: (1) the dog is out of control and the handler does not take effective action to control it or (2) the dog is not housebroken. When there is a legitimate reason to ask that a service animal be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the animal’s presence.
- Establishments that sell or prepare food must generally allow service animals in public areas even if state or local health codes prohibit animals on the premises.
- People with disabilities who use service animals cannot be isolated from other patrons, treated less favorably than other patrons, or charged fees that are not charged to other patrons without animals. In addition, if a business requires a deposit or fee to be paid by patrons with pets, it must waive the charge for service animals.
- If a business such as a hotel normally charges guests for damage that they cause, a customer with a disability may also be charged for damage caused by himself or his service animal.
- Staff are not required to provide care for or supervision of a service animal.
Jamie Knott said that at his restaurant, if an animal was needed by the customer for any reason, he will be happy to accommodate them to provide a comfortable and enjoyable dining experience for all guests. With all of the concerns about spread of the COVID-19 virus, there is currently no evidence that animals can spread the virus to humans. While restaurant owners like Jamie will accommodate service animals and/or emotional support animals for their customers in addition to the new indoor dining rules, there are some owners who may refuse to admit animals in their restaurants at all. Those owners should make every effort to distinguish between a service animal and one was owned strictly for emotional support. Again, emotional support animals are not recognized by law.
Overall, restaurant owners should be aware of issues such as these,because simple awareness and setting rules could help to avoid expensive future lawsuits.
Sadayah Q. DuRant-Brown, Esq. is an attorney in New Jersey and a recent graduate of Rutgers School of Law, where she was Editor of the Race and The Law Review Journal.