Restaurants: Mitigating Coronavirus Risk Exposure

By: Melanie A. Kalmbach

With the recent opening of restaurants in most counties in Indiana, it is important for restaurant owners to ensure they are following all appropriate state and local mandates as well as guidelines from the CDC, FDA and OSHA in order to limit the likelihood of personal injury lawsuits regarding COVID-19 contraction and mitigate their legal risks.

Every Indiana restaurant should know the specific rules set out by Executive Order 20-28, which was issued by Governor Eric Holcomb on May 21, 2020 and establishes mandates for restaurants reopening in Stage 3. As of May 22, 2020, at 12:00 a.m., restaurants in Indiana in all counties except Cass, Lake and Marion (counties which are still in Stage 2 of reopening until June 1, 2020) were permitted to reopen with the following contingencies:

  1. In-person/on-premises dining is limited to 50% capacity;
  2. Parties for in-person/on-premises dining is limited to 6 people or less;
  3. All tables and/or booths must be spaced six feet apart;
  4. No self-service food stations (such as salad bars) are permitted;
  5. Self-service beverage stations are permitted, however, all cups, lids and straws are to be supplied by the waitstaff and customers may not use or fill their own cup, mug or glass and refills are strictly prohibited;
  6. All restaurant employees must be screened for COVID-19 symptoms before returning to work;
  7. All restaurant employees must wear face coverings;
  8. Bar areas are to remain closed; and
  9. Live entertainment is prohibited.

Additionally, all restaurants must develop a plan to implement measures and safeguards to ensure a safe environment for restaurant employees and customers. Restaurants are required to provide the plan to each employee and post it publicly. The plan must:

  1. Institute an employee health screening process;
  2. Implement enhanced cleaning and disinfecting procedures, especially regular cleaning of high-touch surfaces such as doorknobs, countertops, reusable menus, flush handles and faucet handles;
  3. Increase the opportunity and availability for employees and customers to wash their hands or take other personal hygiene measures such as the use of hand sanitizer; and
  4. Comply with social distancing by maintaining a six-foot distance between persons.

The above rules will remain in place until at least June 13, 2020 at 11:59 p.m. The full Executive Order can be found here.

It is important to note, however, that the above rules are the minimum procedures for restaurants to implement during the reopening process.  To minimize the risk of COVID-19 related personal injury claims, restaurant should implement further procedures. Restaurant ownership should effectively train their employees and regularly monitor employees regarding appropriate personal hygiene procedures. All employees should wash their hands for at least 20 seconds using soap and water, refrain from touching their face, use gloves when handling food or utensils, wear face masks, and have their temperatures taken before each shift.  A designated employee should be responsible for taking each employee’s temperature before their shift.  If an employee is found to have a fever, that employee should be sent home immediately. Flexible sick leave policies should also be implemented to encourage sick employees to stay at home.

Implementing more stringent and frequent cleaning and disinfecting procedures is imperative for restaurants during Stage 2 of reopening. Restaurant personnel should be appropriately trained on the use of disinfectant products and regular shift meetings should occur to review procedures and make changes as necessary. All tables, booths, chairs, railings, light switches, push plates, point-of-sale screens, reusable menus and items on the table should be disinfected, washed, rinsed and sanitized after each use. Restrooms should be deep cleaned more frequently throughout the day, including sanitizing the toilet flushers, doorknobs, faucet handles, soap dispensers and towel holders. Soap dispensers, towels, and toilet paper should be restocked frequently in anticipation of increased use. Restaurants should strongly consider utilizing disposable menus, condiments, and utensils. Employees should also offer customers an opportunity to clean their hands before and after meals. Touchless hand sanitizer or individual hand wipes should be offered to customers and placed in convenient, easily accessible places throughout the restaurant.

Restaurants should also take steps to ensure customers and employees are following appropriate social distancing standards by remaining six feet apart. Designating specific entrances and exits to reduce exposure upon entering or exiting the restaurant should be considered. When patrons must wait for a table, the restaurant should consider requesting customers to wait in their car or outside the restaurant and texting or calling them when their table is ready to avoid congestion. Tables and booths should be rearranged six feet apart and tables not to be used should be clearly marked. The use of signs, floor markings and visual cues to clearly identify six foot distances from the front counter through the customer waiting areas and in restrooms is also suggested to clearly define where customers are permitted to stand. Posting warning signs at or near the restaurant entrance to warn customers of the restaurant’s inability to guarantee the safety of dine-in customers from the coronavirus is an excellent practice. Such signs can be as simple as stating, “Restaurant protocols cannot guarantee the safety of dine-customers” or as elaborate as “The virus that causes COVID-19 can be spread to others by infected persons who have few or no symptoms. Individuals at higher risk of contracting the virus are those that are 65 or older or those that have pre-existing health conditions. Because of the hidden nature of this threat, everyone should rigorously follow the protocols being used on the premises, all of which facilitate safe and measured mitigation of the risks.” Implementing hands-free payment options, online ordering and curb-side pick-up is also highly suggested. If possible, restaurants should consider limiting menu offerings to accommodate food preparation and cooking at six-foot distances.

Although implementing the above recommended protocols will not prevent lawsuits, they equip the restaurant with a better defense and possibility of prevailing if such a lawsuit is filed. Moreover, if customers witness the extraordinary measures restaurant personnel are undertaking to keep their customers safe, it will likely reduce the possibility of lawsuits. Restaurants should also be familiar with the legal standard of liability. In Indiana, business owners have a legal duty to exercise reasonable care for the safety of its patrons and warn patrons of the known risks of visiting the property. Restaurants should go “above and beyond” the minimum requirements set forth in Executive Order 20-28 and consider implementing the above recommended protocols to keep their employees and patrons safe.

For more information on best practices for restaurants during the COVID-19 pandemic, see FDA, CDC and OSHA guidelines.

If you have questions about about these guidelines, contact your DSV attorney or Melanie A. Kalmbach at

***The information contained on this website is for informational purposes and is not intended as formal legal advice and cannot be relied upon as such.  No attorney client relationship is established or intended as a result of the information contained on this website.***