The Mask Police Rise Again

Restaurants remain immune to mask and vax mandates—but here's how to protect yourself if you decide to require them for guests.

Covered restaurant patio crowded with diners and flowering potted plants.
No mask, no problem—unless you say it is. / ©renka1/123RF.COM

As the country bears down for what seems like the 666th COVID wave and government recommendations and requirements are back to changing multiple times per week, here’s the state of play in Colorado. Plus, there’s a guide for how to protect yourself if you decide to venture down the long, twisty road of requiring proof of the jab for guests and employees and (finally!) some good news for operators claiming the Employee Retention Tax Credit.

The following information comes from the Colorado Restaurant Association’s August 2, 4, and 5 newsletters. Sign up to receive the full versions here.

COVID-19 Update: Neither Governor Polis nor Denver Mayor Hancock Reinstate Mask Mandates; Denver Requires Vaccines for Some Workers

In a press conference August 2, Governor Polis encouraged Coloradans to wear masks in busy places and to get vaccinated, but he did not reinstate a statewide indoor mask mandate. Denver Mayor Hancock also went on record today saying that the City and County of Denver will not implement a local mask order, despite rising numbers of cases of the delta variant of COVID-19. Mayor Hancock did institute a vaccine mandate for City and County workers employed in “settings that serve vulnerable or at-risk populations,” which does not include restaurants. (It does include schools, hospitals, nursing homes, homeless shelters, jails, and other such settings.)

Read the public health order here.

Since there is no mask mandate in place, the CRA believes decisions about masks should be made by restaurant owners and operators as you determine what is best for your business and to clearly communicate those decisions with your employees and customers.

If you decide to require masks in your restaurant, we have created an updated poster to help you enforce your policy.

The Governor also stated that due to the rise in cases in unvaccinated individuals caused by the delta variant, the State is striving to increase vaccination levels from 70% of the eligible population to 80%.

If you would like to host a vaccination clinic for your employees at your business, the State will work to coordinate this with you free of cost. Click here to schedule a free vaccination clinic at your business. 

COVID-19 Legal Help: Considering Mandating Masks of Vaccinations? What You Should Know to Reduce Legal Risk!

As restaurants are starting to consider mask and/or vaccination mandates for employees and guests, we reached out to our partners at Messner Reeves LLP to provide legal advice to minimize your risk in the event you choose to move in this direction.    

For Guests

You can legally say that your restaurant is requiring mask usage or proof of vaccination status (this does not violate HIPAA – Health Insurance Portability and Accountability Act for all guests). However, you need to have clear training procedures in place with your staff on what to say to guests in various situations. You will also need to make accommodations in certain situations (i.e., health or religious reasons).

For example: If someone says that they are not vaccinated for health or religious reasons, you could accommodate them by saying : “We ask that you wear a mask while not seated, since you are not vaccinated.” Or…“Can we seat you outside? Can we seat you in an isolated place? Can you do curbside pickup instead of dining inside?”

If someone refuses to wear a mask, you can ask them to dine in another time or do curbside pickup instead. Do not ask why they are not vaccinated or not wearing a mask. Do not ask for disability paperwork. Do not ask for a doctor’s note. Ask how you can accommodate them. 

Note: You should not prohibit guests from using the restroom under any circumstances. If the guest becomes hostile and refuses to adhere to the recommended accommodation you are offering, you may say to them: “For the health and safety of our other customers and employees, we are asking you to leave.” You then need to be prepared about what to do if they refuse. Be prepared for potential ramifications (including an escalated situation or media calls following an incident). You may need to call law enforcement and let them know that you have a customer who refuses to adhere to your safety policy.   It is important to note: New York City has announced that they will require proof of vaccination to enter all restaurants, fitness centers, and indoor entertainment venues starting August 16. Enforcement will begin on September 13. We’ll keep a close eye on how this progresses and how it is enforced. Other cities may follow suit.    

For Employees

Restaurants can require employees to wear masks or be vaccinated, unless there is an accommodation that needs to be considered for an individual employee (i.e. a health condition that would prevent them from doing so.) If an employee reports either a health or religious reason for not complying with your mandate, the employer needs to find a reasonable way to accommodate that worker. If you can reasonably accommodate them, then you must. If it is unreasonable, then you are not required to. The accommodation process may include determining whether it is necessary to obtain supporting documentation about the employee’s disability, including an explanation from a medical professional as to why an employee cannot wear a mask or get vaccinated. 

You should know that any mandate will come with some risk, but following these guidelines will help minimize that risk. You need to make sure you are consistent in the way that you implement this policy.  Guidance from the Occupational Health and Safety Administration (OSHA) on protecting workers during COVID: Additionally, according to OSHA, employers should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19, including:

  • Grant paid time off for employees to get vaccinated.
  • Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for COVID-19, and all workers with COVID-19 symptoms to stay home from work. 
  • Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas. 
  • Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE.
  • Educate and train workers on your COVID-19 policies and procedures using accessible formats and in language they understand. 
  • Suggest that unvaccinated customers, visitors, or guests wear face coverings.
  • Maintain ventilation systems. 
  • Perform routine cleaning and disinfection.
  • Record and report COVID-19 infections and deaths to the Colorado Department of Public Health and Environment.
  • Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.
  • Follow other applicable mandatory OSHA standards.

Here’s a link to the OSHA website that provides further explanation on each topic. Note: This is entirely different from the California-equivalent OSHA requirements, which are much more stringent. 

“5 Options for Employers Wanting to Improve Vaccination Rates” From Our Legal Resource Partners at Fisher Phillips

“With the Delta-variant-fueled surge of COVID-19 cases leading to new CDC masking guidance, and the specter of further restrictions, employers have a renewed interest in seeing the vaccination rate of their workforces climb. Yet many employers report frustration at a hesitant bloc of workers who have not yet received any vaccine doses. This hesitancy is only emboldened by the CDC’s most recent data suggesting that, although rare, those who are fully vaccinated can contract and transmit the virus. What can you do if you fall into this group that is still striving to increase vaccination rates among employees? Here are five options employers can consider to improve workforce vaccination percentages, listed from what could be classified least to most intrusive.”

Click here to read the full article.

Tips Qualify As Eligible Wages for the Employee Retention Tax Credit

Positive news for restaurants accessing the employee retention tax credit (ERTC):

  • Businesses can claim cash tips paid by customers in excess of $20 per month as eligible wages for ERTC.
  • Businesses can receive both the ERTC and the section 45B credit for the same wages.

Eligible businesses can access 50% of up to $10,000 in eligible wages for ERTC in 2020, for a total of $5,000. In 2021, that percentage rises to 70% of up to $10,000 in eligible wages during each calendar quarter, for a total of $7,000 each quarter. 

This is welcome guidance after the National Restaurant Association worked with Congress and the Administration to clarify eligible wages and tips.

Click here to read the full ERTC guidance from the IRS.

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