Restaurant & Bar Owners Navigate COVID-19 With Scant Government Rules to Follow
with research contributions by Katricia Lang
The Texas and Harris County stay-at-home orders that shut down restaurant dining rooms and bars in mid-March to delay the spread of COVID-19 was only the first phase of a brutal situation that has pummeled businesses. Reopening, which started in phases on May 1, has come with new problems. Over the past two weeks, several business owners have revealed the discovery of one or more employees with COVID-19.
Owner Aaron Lyons of Dish Society faced that situation earlier this week when three employees at the Memorial Green location tested positive. He chose to immediately disclose the problem. “It felt like the right thing to do,” he said. “In general, I try to approach everything from a guest perspective and as a guest I would want to know. A month or two ago it would have been a lot harder to make that decision in full disclosure. It could have been the kiss of death to some degree. Now people realize that this is everywhere and everyone probably knows someone who has it so it’s viewed differently overall – less of a stigma for sure.”
While owners such as Lyons chose to be transparent with the public, Houston Food Finder has fielded numerous private messages from readers over the past two weeks with claims that other owners are either underreporting the number of COVID-positive employees or not disclosing the issue at all. There is no way to prove or disprove these claims, because there is no city, county or state law that requires restaurants or bars to reveal when employees test positive for COVID-19. Furthermore, there is no governmental agency charged with reporting such findings to the public. (It is important to note that when disclosures are made, whether by a business or the government, it is a standard that affected individuals are described in only the most general of terms to protect their privacy.)
There also isn’t any requirement that these businesses temporarily close after the discovery. The owners who have chosen to communicate with the public upon discovering a positive employee, as well as shut down and implement special sanitation measures, have done so driven only by their own reasons. Some choose not to. Reporter Miya Shay of ABC-13 posted on Twitter that although restaurant Toulouse in River Oaks discovered a COVID-19-positive bartender, it didn’t close at all, “because [the] bartender didn’t show symptoms at work.”
Many bars & restaurants are cautious, closing when they have a positive case to deep clean. But many are not. A manager of the high end Toulouse in @ROdistrict told me a bartender tested positive. Biz as usual, because bartender didn’t show symptoms at work.
— Miya Shay (@miyashay) June 16, 2020
“We all — not just restaurant managers and employees — are ethically and morally responsible to communicate about [COVID-19] in the most honest way possible so we can mitigate our risk of transmissibility moving forward,” said Sujata Sirsat, assistant professor at the Conrad N. Hilton College of Hotel and Restaurant Management at the University of Houston.
In Houston, it’s usually the job of the Health Department to inform the public when potential health hazards are discovered at restaurants or bars. However, it doesn’t deal with or report contagious illness situations. According to Scott Packard, Chief Communications Officer for the Houston Health Department: “There is no requirement for food service establishments to report COVID-19 positive employees to their local health department. Such reporting occurs via medical providers and labs, which prompts the contact tracing process. The Houston Health Department does not identify locations associated with infectious disease investigation as close contacts are identified and notified directly by the health department through contact tracing.”
Packard explained the steps of what is supposed to happen if an employee is diagnosed with COVID-19. First, “the Texas Health & Safety Code requires medical providers and laboratories [to] immediately report positive results to their local health department.” That is then supposed to flag the Bureau of Epidemiology to start tracing “close contacts” of the employee — defined by the CDC as “an individual who has had close contact of less than six feet for more than 15 minutes” — to let them know they may have have been exposed to the disease.
“When the contact tracing process identifies a person with COVID-19 who works at a food service establishment, it notifies our Bureau of Consumer Health Services, which visits the establishment to ensure it follows CDC guidance,” wrote Packard. “Examples of such guidance includes closing the affected area for cleaning and disinfecting, ensuring adequate space for social distancing, and displaying social distancing signage.”
In regards to the importance of contact tracing, Sirsat said, “In a broad sense, we’re in this together and need to be able to identify the folks who are infected. All of this is done anonymously. This isn’t done to shame anyone in any way.”
As far as ensuring compliance with the Open Texas occupancy guidelines — currently 50% for bars and 75% for restaurants —Packard stated that it is up to the Houston Fire Department to enforce that.
Notice the word “guidelines”. A guideline is not a requirement, nor is it a law. It’s only a suggestion, and there is nothing that suggests public notification when there are employees who have tested positive for COVID-19.
As far as whether a restaurant or bar has to close for any amount of time after the discovery, the CDC’s “Clean and Disinfect” guidelines are open-ended. The areas that were used by a sick person are supposed to be cleaned and disinfected. The recommendation is to wait at least 24 hours before disinfection (ostensibly to protect those responsible for cleaning), but “if 24 hours is not feasible, wait as long as possible.” So, it’s up to owners to decide how long “as long as possible” is.
Even the Occupational Safety and Health Administration (OSHA) has no COVID-19 reporting requirement for employers, unless an employee actually dies. There is only a recording requirement — and even that is largely left open for the employer’s interpretation. The Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) only advises that a case be recorded if it is work-related “based on the information reasonably available to the employer at the time it made its work-relatedness determination.”
With so little in the way of local rules and guidance (emblematic of how Texas mayors are currently having to ask for permission from Governor Greg Abbott to require the wearing of masks in public spaces in their cities) members of Houston’s restaurant and bar industry have had to figure how to best handle the situation if staff members test positive for COVID-19. Lyons notes that there is “a legitimate issue of there not being a ton of guidance around this. We’re sticking to what the CDC and Texas Restaurant Association recommend, but everything you read tends to be a ‘suggestion’ or ‘recommendation.’” He also says that he read “industry articles and local food publications and news outlets reporting on these stories” for additional insights.
Industry organizations and private entities are trying to fill the information gap. This week, the Texas Restaurant Association released a handout as an easy reference to CDC recommendations for what to do when an employee tests positive for COVID-19. Also, a multidisciplinary group of industry professionals have banded together to form a grassroots “COVID task force”. They are working under the banner of Convive Hospitality, a restaurant consulting firm started by former Legacy Restaurants CEO Jonathan Horowitz. “I guess you can say I have a bit of experience in all these areas, and can essentially pull it all together to provide the resources for any owners/operators who may need the assistance,” Horowitz said. The team includes food safety and sanitation professional Chirag Bhatt, attorney Jacob Monty from Monty & Ramirez, human resources specialist Bryan Neely of HR Ally, risk insurance agent Greg Scheinman from INSGroup and Rachel Austin of public and media relations firm Hometown Social.
With dining revenue down 61% from last year, and with both Texas and Houston reporting record-breaking numbers of new COVID-19 cases, retaining diner trust is a precious commodity for restaurateurs — now more than ever before. Customers want to go where they know they are safe. Owners who can either state that none of their staff have tested positive, or who are transparent when the situation does occur, are more likely to keep that trust.
From Lyons’ perspective, it is a question of “when” an employee tests positive for COVID-19, not “if.” “Have a plan in place for when this happens, because it will,” he said. “Have testing facility information ready along with drafts of internal and external communications ready so you’re not having to put all of that together during a super-stressful time. What we found during this ordeal is that testing facilities are jammed up right now. We’re being told test results are taking longer to report than they did even a week or two ago, so be prepared to have to wait two to five days for results. The instant and quick turnaround testing places are hard to get into and usually require insurance or big bucks. Sit down with your leadership team and pretend you got that dreaded call. Now map out a cohesive plan while you still have a clear head. Ultimately, don’t be afraid to put it out there and be prepared.”