Tuesday, June 9, 2020

Coronavirus Update 6–9–2020: Northeast Ohio restaurants sue to block reopening guidelines

What is a state's ability to regulate businesses during a pandemic? This question is one that will be answered in a lawsuit filed yesterday by eight local restaurants against Ohio Director of Health Dr. Amy Acton. The lawsuit claims that Ohio's reopening rules and guidelines for restaurants are unconstitutional, vague, and could subject them to liability from patrons if not strictly followed.

Not to do the Attorney General's job for him, but let me offer a quick rebuttal to each of these arguments.

1. Ohio's reopening guidelines are not unconstitutional.

In Jacobson v. Mass., the U.S. Supreme Court held that states have broad and significant power to legislate in the public interest during a public health emergency. Just because that case is 115 years old doesn't make its precedent any less meaningful or binding. Indeed, as one federal court recently stated, in upholding North Carolina's coronavirus restrictions on religious services, "Although 115 years old, Jacobson remains the lodestar in striking the balance between constitutional rights and public safety." If a state can use its power to limit religious services and medical procedures, it can certainly do so to limit restaurants.

2. Ohio's reopening guidelines are not vague.

To the contrary, Ohio's reopening rules and guidelines for restaurants are quite specific. Restaurants are must:
  • Ensure a minimum of six feet between employees, and if not possible use barriers if applicable, and increase the frequency of surface cleaning, handwashing, sanitizing, and monitor compliance. 
  • Ensure a minimum of six feet between parties waiting and when dining, and if not possible use barriers or other protective devices.
  • Allow all customers, patrons, visitors, contractors, vendors, and similar non-employees to use facial coverings, except for specifically documented legal, life, health or safety considerations and limited documented security considerations 
  • Require all employees to wear facial coverings.
  • Require employees to perform daily symptom assessments.
  • Require employees to stay at home if symptomatic.
  • Provide approved COVID-19 education to employees. 
  • Add COVID-19 symptoms to the current standard Health Agreement required by the food safety code.
  • Require regular handwashing by employees.
  • Limit the number of employees allowed in break rooms at the same time and practice social distancing. 
  • Post a list of COVID-19 symptoms in a conspicuous place.
  • Ask customers and guests not to enter if symptomatic.
  • Provide access to hand-washing methods while in the food service establishment, and if possible place approved hand washing/sanitizing products in high-contact areas.
  • Establish and post maximum dining area capacity using updated COVID-19 compliant floor plans. Limit maximum party size to 10.
  • Post a kitchen floor plan, establishing safe social distancing guidelines, and following established state health dept guidance for masks and gloves.
  • Clean the entire establishment daily. 
  • Clean and sanitize tabletops, chairs, and menus between seatings. 
  • Clean all high touch areas every two hours, and more frequently as needed.
  • Establish ordering areas and waiting areas with clearly marked safe distancing and separations per individual/social group for both restaurant and bar service.
  • Remove self-service, table, and common area items.
  • Permit salad bars and buffets only if served by staff with safe six feet social distancing between parties.

These are just the mandatory requirements. They don't even touch the similarly detailed list of recommended best practices. This list is the opposite of vague.

3/ Ohio's reopening guidelines do not open restaurants to liability if patrons get sick.

It's just way too hard for a patron to establish causation. With community spread by asymptomatic and presymptomatic transmission, I have no idea how one proves by a preponderance of the evidence that the exposure the sickened a patron happened at a particular restaurant.

Instead of wasting time on lawsuits challenging the authority of Dr. Acton, businesses should be spending their resources managing their businesses through this pandemic. Better yet, let’s all understand that we need rules and guidelines to keep us safe through this pandemic, and challenging the state’a authority to do so serves no one and makes us all was less safe.