Running a Restaurant in the Covid Era; So Much Regulation, So Little Guidance. 

Joanna Shea
Associate Editor
Loyola University Chicago School of Law, JD 2022

Americans miss dining out. In fact, surveys indicate that sitting down in a restaurant is the most missed pastime of the Covid-19 pandemic. As the monotony of homebound living grows and already economically fragile restaurants operate at a diminished capacity, patrons and restaurants alike are flouting regulations to get back to normal. Between the pressure of dwindling stimulus loans and eager customers, regulation must be balanced with economic relief to encourage responsible and sustainable reopening.

A pillar of the American economy

It is easy to miscategorize dining out as an unnecessary luxury amidst a public health crisis and unprecedented economic instability. However, the restaurant industry is a cornerstone of the American economy and workforce. American food retailers employ about ten percent of the American workforce and food service represents about 4% of the US gross domestic product.

Further, the industry is highly diverse. Restaurants are the largest employer of teenagers in the country and have more women and minority managers than any other sector. Other vulnerable populations such as undocumented citizens makeup nearly 10% of the restaurant workforce. Covid-19 has resulted in eight million jobs lost and an estimated 240 billion dollars in industry losses.

Federal regulatory guidance

Restaurant owners typically comply with a tangle of federal, state, and local regulations. The Food and Drug Administration (“FDA”) Food Code provides a model law for the 3000+ state, local, and tribal agencies responsible for primary regulation of retail food including restaurants. It naturally follows that federal guidelines for reopening during the Covid-19 pandemic seem overly general to help shape how a restaurant can safely reopen.

Most of the broad guidelines published by the FDA regarding facility operations and food safety for reopening read more like typical maintenance checks. For example, “Are the premises in good order, including fully operational utilities and equipment?” and “Is there hot and cold water?” While the more Covid specific guidelines do reference higher sanitation standards, they do not specify what standard should be met. A one-pager published by Occupational Safety and Health Administration (“OSHA”) is similarly general and relatively unhelpful in practice.

As in normal times, local governments provide the bulk of the regulatory guidelines and enforcement of the guidelines. Restaurant owners in cities with falling Covid rates are constantly adjusting to more lenient regulations. Elsewhere in the United States, restaurant owners are anxiously awaiting updated regulations that could make or break their operation plan for upcoming winter months.

Regulation needs to be coupled with stimulus 

Regulation must be coupled with economic support from the federal government. Chef & restaurant owner Laurel Beth Kratochvila of Berlin praised the approach in Germany which included clear regulatory guidelines for operation and reduced sales tax for customers. While eateries are serving fewer meals than normal, a non-loan stimulus prevents businesses from laying off workers. More importantly, it alleviates the pressure to make risky decisions about how and when to reopen.

Although some large chains have thrived during the pandemic, independent restaurants are still struggling to make ends meet. As the clock ticks on Paycheck Protection Program (“PPP”) loan payback and the funds run out, a glimmer of hope came from a revised Heroes Act. The Act, which passed in the House in late September, included the RESTAURANTS Act, a $120 billion relief package for the nation’s nearly 500,000 independent restaurants, bars, and food trucks. Unlike PPP, the relief would not need to be paid back.

Restaurants have done their part. The guidelines from the FDA are not enough, restaurants need more support. They have innovated and reimaged the dining experience to account for customer and employee safety. Many have done what they can to enforce these safety procedures amidst cooped-up patrons. The environment created in a restaurant setting has a direct impact on the patronage. Unlike other service experiences like a gym or retail store, many of us seek intimacy and community from our dining experiences. While on their face, regulatory and safety measures have public and employee safety at the forefront, this contradicts the edge a restaurant needs to be competitive. With customers desperate for social contact and a sense of normalcy, flouting the rules can be a tempting competitive edge when every single dollar counts. The government needs to pair regulatory guidance with financial stimulus, so restaurants don’t have to risk public health for the viability of their business.