Restaurants Given a Green Light in Pennsylvania’s Green Phase, Other Colorful Limitations Follow

Saul Ewing Arnstein & Lehr LLP

Saul Ewing Arnstein & Lehr LLP

After weeks of confusion and business closure, the Governor of Pennsylvania announced on May 27, 2020 extensive guidelines for businesses in the food service industry, which will allow restaurants and bars within Pennsylvania’s “green phase” to reopen under the state’s Plan to Reopen.

Restaurants had been closed across the Commonwealth and have gradually been permitted to open take-out and delivery services. Recently, the Pennsylvania General Assembly passed and Governor Wolf signed legislation which allowed bars and restaurants throughout the state to sell cocktails-to-go.

Starting this Friday, May 29, 2020, restaurants in the state’s green phase (which is mostly in the northwest part of the state) will be permitted to open both indoor and outdoor facilities to patrons, subject to fairly significant restrictions that are set forth in the new guidance. Starting Friday, June 5, 2020, restaurants in the rest of the state (the yellow phase) will be authorized to open outdoor facilities to customers subject to the same guidance with additional restrictions. These policies are cumulative with previously issued guidance for all Pennsylvania businesses, including regular cleaning, mask wearing, and social distancing requirements.

Unfortunately, restaurants in the “red phase,” which mostly includes southeastern Pennsylvania, including Philadelphia, remain closed for patrons except for carry-out and delivery services.

Under the new guidance, restaurants in the yellow counties will be authorized to reopen outdoor dining facilities so long as they:

  • Close indoor areas to customers, including any seating
  • Serve customers only sitting at tables that are appropriately distanced (see below)
  • Only use single-use menus (or sanitize digital menus after each use)
  • Close self-service food and drink options, such as fountain soda machines or salad bars
  • Remove all condiments from tables and offer condiment service a la carte upon customer request

Within the green phase, restaurants will also be able to reopen their indoor dining facilities, so long as customers are sitting at least six feet apart from one another within bar seating, except that a maximum of four customers who have a “common relationship” may sit together at a bar.

Within both phases, the Restaurant Industry Guidance requires restaurants to:

  • Enforce social distancing of six feet between individuals at different tables and people walking in areas outside the restaurant’s control, including sidewalks;
  • Enforce a capacity limit which is the lesser of:
    • 50% of the restaurant’s stated fire capacity or 12 people per 1,000 square feet if there is no available fire code number; OR
    • Arrange the restaurant so that customers sitting at a table are not within six feet of any customers sitting at another table in any direction, and calculate that number;
  • Close non-food related amenities, such as playgrounds and arcade areas;
  • Train employees on handwashing techniques;
  • Assign employees to monitor and clean high-touch areas (in both the front and back of the house);
  • Provide physical guides for patrons to remain at least six feet apart while in lines at the restroom or the cashier like floor tape or signage; and
  • Require all customers to wear masks except when seated and provide employees face masks (who must wear masks at all times except under narrow exceptions).

Finally, the Restaurant Industry Guidance encourages restaurants within the green zone to, among other things:

  • Establish a written COVID-19 prevention plan;
  • Ask employees to self-measure temperature prior to reporting to work;
  • Prioritize/promote reservations over walk-ins;
  • Use staff-facilitated seating instead of seat-yourself policies;
  • Prohibit groups of more than 10 at a table, unless they are a family from the same household;
  • Use single-use disposable menus instead of reusable menus which would have to be sanitized after each use;
  • Reduce use of buzzers (for reservations) and encourage use of cell phone-based seating applications and other technologies (like contactless payment options);
  • Install physical barriers at point of sale/cash registers/host stands;
  • Reduce physical interactions between customers and staff; and
  • Consider installing touchless door and sink systems.

While restaurants are anxious to return to more normal operations as soon as possible, in order to do so, they need to contend with no less than three executive orders, two business guidances from the Commonwealth and guidance from the U.S. Centers for Disease Control and Prevention.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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