NYC DOT ISSUING REMOVAL ORDERS FOR OPEN RESTAURANT OUTDOOR STRUCTURES

Dear Friends and Family –

New day, new developments, new concerns, new solutions. Well, it’s been exactly two weeks since we last spoke, and it’s about two weeks until the Key to NYC vaccine mandate becomes mandatory.  In addition, over the last two weeks we have seen an increase in the amount of spurious “cease and desist” notices being sent to operators relative to outdoor structures built pursuant to the NYC Open Restaurant Program.  So, let’s dive in…

OPEN RESTAURANTS – CEASE & DESIST NOTICES 

If you haven’t yet had the pleasure of experiencing the City’s Department of Transportation (DOT) oversight of the NYC Open Restaurants program—well, buckle up. As part of its inspection and oversight role, the DOT has recently served a number of our clients with a “Cease-and-Desist Order” claiming that they will be removed from the NYC Open Restaurants Program, and that they must remove their outdoor dining structure within 24 hours. According to these orders, failure to do so could jeopardize the recipient’s liquor license.

Putting aside the questionable and potentially objectionable wording and lack of notice attaching to these orders, the DOT fails to specify whether (if, in fact, there are issues with your outdoor structure) there is an opportunity to correct the alleged issues before the order is enforced.

Should you receive one of these notices – first, call us.  We are here to help and to critically review the order.  To be enforceable, the order should specify what issues need to be corrected. Often, they relate to issues noted from a prior inspection, so it is important to correct those issues when you first receive them, even if the issue no longer seems relevant. For example, even though we are still in the middle of the summer, if you have been previously cited for failing to fix your snow sticks, you could be cited now for failure to correct – so fix your snow sticks!

Once you have corrected any outstanding issues, take photographs of the updated, compliant outdoor dining structure and upload them here. The DOT will then review the photographs and should either confirm that your structure is compliant, or otherwise advise on what additional steps must be taken to become compliant. As of now, there is no guidance on the DOT’s timeframe on when they will accept corrective proof, so we strongly recommend doing so as soon you receive a  Cease-and-Desist Order.

If, after you correct the issues cited by the DOT, the DOT proceeds to enforce the order and remove you from the Open Restaurants program, reach out to either of our litigation department’s Co-Chairs, Joe Taylor (joe.taylor@helbraunlevey.com) or Hamutal Lieberman (hamutal.lieberman@helbraunlevey.com). Again, we’re here to help.

KEY TO NYC UPDATE

Here is what you need to know now:

  1. The City of New York has released a “template” policy which you may use as a guide to create your own.  A link to that sample policy can be found here.  We are standing by to help you customize this template into a workable document that fits you and your business.
  2. The City has also released a small business services guide, with additional resources.  A link to that guide can be found here.
  3. Our last webinar is now available on our website and YouTube.  We encourage you to view the webinar and reach out to us with any lingering questions or concerns you may have about implementing the Key to NYC.

We also take this opportunity to announce that effective September 13, 2021, we will require all clients, guests and visitors who wish to visit the HL offices, for any purpose, to produce proof of their own vaccination status consistent with the Key to NYC regulations.  Prior to confirming any appointment for an in-person meeting, we will confirm your vaccination status.  If you do not have proof of your vaccination, we will respectfully ask that you keep your visit to our office “masked” and brief or, in the alternative, that the meeting be arranged virtually.

We continue to monitor these situations and will update you as warranted. We plan to hold another webinar after Key to NYC comes into force to deal with expected (and unexpected) implementation and enforcement issues.  For more up to date information, we encourage you to register for HR Confidential, a monthly newsletter where we provide updates and commentary on employment practices rules, regulations, and best practices. You can register for the HR Confidential Newsletter here.

Thanks again,
Lee

KEY TO NYC FAQ’s

What do I do with the proof of vaccination I receive?

For employees, we suggest a two-fold system. Keep a spreadsheet indicating that you have received proof from each of your employees. This is a public document that can be shared with NYC agencies if you are inspected. Separately, and with very limited access, store the actual copies of employees’ proof of vaccination. These should be in individual folders and apart from each employee’s personnel file. If someone provides their verification via app, you can take a screenshot of it and save that.  To be clear, the rules do not require that you maintain actual proof, but we cannot say for certain that the City will not require it in the future.  Therefore, to prevent doing this again, we suggest getting copies now and keeping them in a safe and secure place.

Remember that you will need to follow-up with employees who only have one shot when you record their status. Use your spreadsheet to track this information as well.

You do not need to keep a copy of each guest’s proof of vaccination, but you do need to have a plan for how you will check vaccination status and identification. If you have a reservations system with guest profiles, you can mark down vaccination status there so that employees do not have to recheck this guest every time.

May I ask about vaccine status during interviews?

Yes, if being vaccinated is a required qualification for employment at your establishment, you may ask potential hires if they have been vaccinated. By the same token, you may also ask current employees if they are vaccinated, and you may ask them why they aren’t vaccinated.  You must treat applicants and current employees the same.

Vaccination status is not a protected class.

Are masks a reasonable accommodation?

No, as of August 27, masks will not be an acceptable replacement for the vaccine once the mandate begins, nor will they be an option for someone who cannot be vaccinated but wishes to keep working. It’s possible that this could change, but we doubt it based on recent events: NYC schools requiring teachers to be vaccinated, the military asking all personnel to be vaccinated, and the FDA giving Pfizer’s vaccine its full approval.

We think masks are great, however, and wearing a mask is proven to help stop the spread of COVID-19 and other airborne illnesses. Having a sensible mask policy in place for staff and employees, regardless of vaccination status, is a solid move.

Is my business liable for COVID-19 related issues that could arise before September 13th?

We are still effectively on the honor system until September 13, meaning that unvaccinated people need to mask up and maintain six feet of social distance when dining inside or outside. So long as you are following the current guidance, we believe that you can avoid liability if someone, for example, gets COVID at your restaurant and it can be traced unequivocally back to you. While we are no longer asked to do contact tracing or temperature checks, there’s no reason why you can’t bring back these policies as additional safety measures.

What if I don’t have outdoor dining? How can I serve guests who have a legitimate reason for being unvaccinated?

NYC advises that you provide these guests with a menu and allow them to order food to go or call and order their food to go. Unvaccinated people may order at a counter if they are masked up and only inside for a brief (ten or so minutes) amount of time. If you do have outdoor dining, you should bring back appropriate social distancing protocol so that unvaccinated folks may sit outside.

Do I need to use the poster that NYC provided?

An establishment may create its own sign, which must be at least 8.5 x 11 inches, use at least 14-point font, and include this text: “New York City requires staff and customers 12 years of age and older to be vaccinated against COVID-19 in order to enter this establishment. To find out where to get a free COVID-19 vaccine visit nyc.gov/vaccinefinder or call 877-VAX-4NYC (877-829-4692). For more information on Key to NYC, visit nyc.gov/keytoNYC

This sign needs to be posted at a location easily visible to patrons entering the establishment. We also recommend putting up virtual posters on your Resy or OpenTable page, on your website, and on your social media.

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