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20 Tips for U.S. Virgin Islands Employers in 2020: COVID-19 Guidance for Restaurants, Bars and Nightclubs

Conducting business in the U.S. Virgin Islands poses unique challenges not often encountered in the states, but also unique opportunities. This 20-part series offers tips for doing business in the U.S. Virgin Islands, covering a broad array of topics affecting employers. Part four of this series addresses COVID-19 guidance for restaurants, bars, and nightclubs.

Tip 4: Restaurants, Bars, and Nightclubs Must Adopt Measures to Mitigate the Spread of COVID-19 Among Employees and Patrons

On June 1, 2020, U.S. Virgin Islands Governor Albert Bryan Jr. issued guidance on safety precautions that restaurants, bars, and nightclubs should follow to avoid the transmission of COVID-19 and protect the health of employees and customers. Answers to some frequently asked questions about this guidance are set forth below.

General Guidelines Concerning Employee Screenings and Notifications

Question 1. May restaurants, bars, and nightclubs conduct temperature screenings of employees?

Answer 1. Yes. The guidance provides that a daily on-site screening, using an infrared thermometer, is the “best practice” for screening employees by measuring employee body temperature each day that an employee reports to work. According to the guidance, employees should not report to work if their temperatures exceed 100.3º Fahrenheit. As an alternative to on-site screening, employees may take their temperatures before reporting to work, but the temperature must be “verified” by management onsite.

Q2. Are any additional health screening measures required?

A2. Yes. The guidance states that on a weekly basis, employers should obtain from employees a completed questionnaire for COVID-19 symptoms, which includes the following questions:

  • “Have you been in close contact in the past 14 days with a confirmed case of COVID-19?”
  • “Have you been diagnosed with COVID-19?”
  • “Have you been told by a health care provider or public health official to self-quarantine?”
  • “Are you experiencing a cough, shortness of breath/difficulty breathing, chills, muscle pain, new loss of taste or smell, or sore throat?”
  • “Have you had a fever in the last 48 hours?”
  • “Have you had vomiting or diarrhea in the last 24 hours?”

Q3. May an employer restrict an asymptomatic employee from working?

A3. According to the guidance, employees should self-quarantine if any members of their households have been diagnosed with COVID-19. Employers may restrict employees under these circumstances.

Q4. When may an employee who was exhibiting symptoms return to work?

A4. Any employee who experiences “known or suspected symptoms of COVID-19 must follow [Centers for Disease Control and Prevention (CDC)] guidelines to self-isolate for at least ten (10) days after symptom onset and end self-isolation only after symptoms have improved. A worker is only deemed or considered to have symptoms improved under circumstances where the worker has been fever-free and/or symptom-free for at least three (3) consecutive days without medication before returning to work.”

Q5. What measures should an employer take if an employee refuses to comply with the COVID-19 screening measures?

A5. The guidance provides that employers should send home an employee who refuses to comply with the COVID-19 health screening measures listed in Q&A 2.

Q6. Are there any requirements to notify employees about COVID-19-related policies and practices?

A6. Yes. The guidance directs employers to update their existing illness policies, or to adopt a COVID-19 policy. According to the guidance, “All staff should sign the policy, and the policy should be posted for confirmation.” In addition, businesses “must post” the governor’s guidance, as well as the CDC guidance to stop the spread of germs and the CDC guidance on COVID-19 symptoms on the premises.

Workplace Safety

Q7. Does the guidance address use of personal protective equipment by employees?

A7. Yes. The guidance requires that all employees are to have or be provided with their own dedicated face coverings and gloves . . . worn at all times.” “Face coverings must cover the nose and mouth while being worn.” Face shields are permissible, but not required. “Employee masks should not be medical masks (such as N-95 or surgical masks), which should be reserved for use by health care workers.”

Q8. Are there any provisions addressing social distancing of employees of covered establishments?

A8. Yes. The guidance states that covered businesses should do the following:

  • Limit the maximum number of employees in breakrooms.
  • Stagger shifts for all workers, if possible.
  • Configure workstations to avoid employees standing adjacent to one another when possible. If six feet of separation is not possible, employ mitigation efforts, such as more frequent cleaning and sanitization of the establishment.
  • Conduct virtual business and employee meetings and conferences, if possible.
  • Notify third-party delivery drivers and any suppliers about distancing requirements, and inform them they “should also wear face coverings while in the restaurant and when interacting with any customers at the delivery location.”

Q9. Are there any provisions addressing employee training?

A9. Yes. The guidance provides that covered establishments should train employees concerning:

  • frequent handwashing;
  • using hand sanitizers with at least 60 percent alcohol;
  • refraining from touching their face with their hands;
  • practicing “respiratory etiquette when coughing or sneezing”; and
  • forbidding bare-hand contact with ready-to- eat foods.

Q10. Do the guidance address any other measures concerning sanitation?

A10. Yes. The guidance recommends the following sanitization measures: discouraging employees from sharing office tools and office equipment; cleaning registers or point-of-sale equipment between use by different individuals; and implementing procedures to increase the frequency with which surfaces located in the back of the house are cleaned.

Guidelines Concerning Customer Conduct and Customer-Facing Measures

Q11. Does the guidance address use of face coverings by customers?

A11. As we previously reported, on April 29, 2020, Governor Bryan issued an executive order establishing a requirement that patrons wear face coverings or masks when entering a business. Consistent with this provision, patrons of restaurants, bars, and nightclubs are to wear face coverings, except during meals. The guidance also states that customers should wear face coverings when entering restrooms.

Q12. Are there any measures addressing the screening of customers?

A12. Yes. The guidance states that the “best practice” is to conduct temperature checks and by asking screening health-related questions, or at a “minimum,” by asking the following health-related questions:

  • “Have you been in close contact with a confirmed case of COVID-19?”
  • “Are you experiencing a cough, shortness of breath or sore throat?”
  • “Have you had a fever in the last 48 hours?”

“Customers with temperatures above 100.4 º Fahrenheit should not be permitted on the premises.”

Q13. Does the guidance include any provisions regarding occupancy?

A13. Yes. The number of customers should be limited to 50 percent of seating capacity as defined by business license or the fire marshal, or 50 customers, whichever is less. Additionally, no more than six patrons should be seated at a table, and tables and barstools should be spaced at least six feet apart.

Q14. What other customer-facing changes should covered establishments make?

A14. According to the guidance, businesses should mark waiting areas and pathways to and from restrooms consistent with social distancing standards, and to the extent possible, designate an exit from the facility that is separate from the entrance. Patrons may be notified about available seating via text messages, intercom, or communication with a designated member of the party who is stationed in the waiting area to receive such notifications. In addition, covered establishments are required to use disposable dishes, utensils, napkins, and drink containers.

Customers may bring their own beverage containers and utensils. Sanitization measures include discontinuing the use of self-service salad bars, buffets, and self-service stations for condiments or beverages, and closing any play areas. Measures also include providing single-use menus or menus enclosed in plastic that are sanitized after each use, and providing hand sanitizer in lobby areas, at cashier stations, and in bathrooms.

Q15. May covered establishments offer entertainment?

A15. Yes. However, the guidance prohibits establishments from engaging disc jockeys (DJs) or live entertainers after midnight. Live entertainers should be positioned at least 10 feet from patrons.

Consequences of Noncompliance

Q16. Are there any penalties for noncompliance?

A16. Yes. The U.S. Virgin Islands Department of Health Division of Environmental Health can address noncompliance with the health guidelines, using the following steps:

  • “1st Warning: Written Citation”
  • “2nd Violation: Written Citation with administrative process for assessment of an administrative fine through the Department of Licensing and Consumer Affairs.”
  • “3rd Violation: Written Citation and a Closure for a period not to exceed 7 calendar days unless public health emergency circumstances warranting Closure continued as a matter of law.
  • “4th Violation: An establishment that continues to be non-compliant after exhausting 1, 2, and 3, then suspension of the Business License and Health Permit may occur.”
© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 193

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About this Author

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Simone Francis concentrates her practice in the areas of employment litigation, environmental counseling and litigation, and general litigation. She has represented a range of large, mid-sized, and small employers in litigation before the federal and local courts in the U.S. Virgin Islands and elsewhere in the United States, and also has acted as an advocate before administrative tribunals, including the Equal Employment Opportunity Commission, the Virgin Islands Department of Labor, the Civil Rights Commission, and the Public Employees Relations Board. In addition, Ms....

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Sofia is an associate in the St. Thomas office of Ogletree Deakins.  She received her Juris Doctor from Florida International University College of Law in 2014.  Before joining the firm, Sofia worked as a judicial law clerk for the Honorable Denise Hinds-Roach, and previously interned at the Immigrant Children’s Justice Clinic.

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