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Florida Restaurant Employees and COVID-19: CDC Guidelines Replace Retesting

August 21, 2020

By: Drew Sorrell

On August 6, 2020, Governor DeSantis’s Executive Order 20-192 removed the requirement for restaurant employees who tested positive for COVID-19 to test negative twice before returning to work. The new executive order allows employees to return to work so long as they comply with the current CDC return to work guidelines.

Given the difficulty of obtaining a test and timely results, the Governor’s adoption of CDC guidelines de facto shifts away from a testing approach to what is likely a more practical approach.

As of this writing, the CDC guidelines for returning to work require a person who falls ill with COVID-19 to be 10-days post onset, fever-free (with no medications) and all other symptoms “have improved.” Notably, the current CDC guidelines for persons only exposed to COVID-19 require quarantine for 14 days. As acknowledged by the CDC itself, these guidelines make it possible for a person “exposed” to be away from work longer than a person who is actually ill with COVID-19.

Further, the CDC does not definitively address what “symptoms have improved” means and as a factual matter probably cannot. Additionally, the current 24-hour fever-free requirement fails to prevent the over-eager return to work of a person whose fever breaks for 24 hours and then bounces back, as has happened. In comparison, previous CDC guidance provided a 72-hour fever-free requirement.

The Florida DBPR has explained in its FAQs for EO 20-192 that workers who never develop symptoms but test positive may return to work 10 days following their last positive lab test. Obviously, this answer remains a testing approach.

Interestingly, the DBPR FAQ provides that food service establishments should screen their employees by meeting them outside the establishment. At that meeting the employer, “shall evaluate the employee for obvious signs of illness and send the employee home if symptoms such as cough, fever, shortness of breath, sore throat or signs of a respiratory infection are directly observed.” Hopefully, the employer may also ask the employee if they are suffering from any of those symptoms, and not simply hope that direct observation reveals the employees sore throat, etc.

At this time, the State of Florida has not altered the workers’ compensation rubric for workers who contract COVID-19. On the other hand, the State of Florida has also not enacted immunities for employers/proprietors for suits filed by workers or patrons. In comparison, the Governor of the State of Connecticut has issued his Executive Order No. 7JJJ that gives rise to a rebuttable presumption that essential workers who contract COVID-19 did so as part of their work, thus providing workers’ compensation coverage.

The DBPR FAQ also provides answers to certain questions regarding restaurant operations and capacity; however, these all appear to be consistent with previous guidance. Half-capacity for in-door dining, six-feet distancing, and support for expanding outdoor seating where local law permits such.

If you have any questions or would like to discuss any of these issues further, please contact Drew Sorrell or the attorney with whom you regularly consult at Lowndes.

This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.

Drew Sorrell is a seasoned business lawyer with particular expertise in technology, cybersecurity and privacy issues. With an MBA in marketing and finance, he approaches clients’ legal issues with both a practical business bent and a self-described geeky love of technology.

Drew enjoys working with CLO’s, CIO’s, CTO’s and technology owners at businesses of all sizes in every phase of their legal needs. He assists them on the front end, drafting and negotiating software licenses, Internet service provider agreements, data privacy/breach policies and procedures, and employment/services agreements as well as the indemnity and insurance coverage related to those agreements. He advises clients on the GDPR and state-specific regulations, penetration testing and security audits. He also has years of experience handling matters when things go wrong, including data breaches, privacy issues and other technology or software problems.

A founding member of the Sedona Conference Group 11 (Privacy/Data Security), Drew is frequently asked to speak and write on legal and ethical issues arising from technology, including unfair and deceptive trade practices, data breach, privacy, data governance, and technology contract drafting. He is chair of the firm’s multi-disciplinary Data Governance Group as well as the past chair of the Orange County Bar Association’s Intellectual Property, Business Law and Technology Committees. Drew is also the past president of the Orlando Chapter of the Federal Bar Association.

Outside the technology arena, Drew has substantial expertise in both contracts and commercial litigation. In addition, he has experience assisting clients with government contracting. Drew began his legal career as a judicial clerk to Senior United States District Judge John H. Moore II, in Jacksonville, Florida, and then practiced with an AmLaw top 10 firm in Manhattan. After a stint as an assistant county attorney responsible for day-to-day legal advice and litigating civil issues for the county, Drew returned to Lowndes. Drew is admitted to practice in Florida, New York and the District of Columbia.

Born in Florida, Drew roots for his adopted football team—the FSU Seminoles (because neither Rollins nor George Washington has a football team). He is the proud father of two sons who wrestle and play the euphonium, make great grades and generally keep him on his toes.

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