Impact Survey, ETS Update

January 2022 Impact Survey

The IRA and National Restaurant Association have launched our latest restaurant operator survey to start the year.

We need your input on this advocacy-focused survey as we continue to push for all forms of legislative, regulatory, and financial relief for our industry.

Please take a few minutes today to complete the survey. The survey will remain open until January 18.

Federal ETS Vaccine Mandate Litigation Update

Earlier today, the U.S. Supreme Court heard oral argument on the Biden Administration’s “emergency temporary standard” (ETS) vaccine mandate on private sector employers that is scheduled to go into effect Monday, January 10. Specifically, the Court was considering whether to re-instate an injunction/stay on the mandate while the cases pending; although, the court could also rule on the mandate’s constitutionality.

The hearing was scheduled to take one hour, but it went over two hours because of the number of questions from the justices. There was a clear ideological split among the justices. Justices Kagan, Sotomayor, and Breyer were clearly in favor of finding the mandate constitutional and denying any request for even a temporary injunction/stay. However, a majority of the justices seemed skeptical of OSHA’s authority to issue the vaccine mandate as an ETS or, for that matter, through the regular notice and comment process. Chief Justice Roberts and Justice Gorsuch seemed to agree that the states and Congress would have the authority to do this, but not OSHA. Justice Barrett strongly raised concerns with the blanket nature of the mandate on all large employers disregarding whether if, like landscapers, the workforce is working mostly outside.

The Restaurant Law Center anticipates that there may be a decision on the injunction/stay on or even before Monday morning. Furthermore, Justice Alito floated the idea of an “administrative stay” ahead of the Monday ETS implementation date. This would be a temporary stay to give the court extra time to consider all the arguments and significant briefing materials. While Justice Breyer objected to such an idea because every day meant more deaths, Justice Alito highlighted that the administration has itself kept the mandate on hold for several weeks.

Regardless of the outcome of these court cases, the vaccine requirements for diners and testing requirements for employees in the city of Chicago and Cook County will not be impacted.

Stay tuned for more updates.

Department of Labor “Dual Jobs” Final Rule Impact on Tip-Credit Employers

On Dec. 28, the Labor Department’s new “Dual Jobs” final rule went into effect for tipped employees of restaurants. Under the new regulations, the Labor Department takes the position that employers may only take a tip credit for “tip producing work” and tasks that “directly support” tip producing work, provided that the directly supporting tasks are not performed for a “substantial amount of time.”

As to what constitutes a “substantial amount of time,” the Labor Department proposes to use an “80/20” percentage of hours limitation and a continuous 30-minutes limitation. Some tasks that used to be considered duties of a tipped employees, like wiping tables by a waiter after a customer departs, will not be considered “tip producing work.”

If this sounds hopelessly confusing for you and your team, it’s because it is. The Labor Department exceeded its authority in releasing the final rule, and its impact will be a definite net-negative for our industry.

The Restaurant Law Center (RLC) filed a lawsuit in federal court challenging the final rule and asked the Court to suspend the final rule’s implementation while the litigation is ongoing. RLC expects to appear in court early next month and will keep you updated. 

Click here to read the RLC arguments against the rule.

Chicago, Cook County Vaccine Requirements Now in Effect - Toolkit for Businesses and Employers

The city of Chicago and Cook County's vaccine requirements for indoor dining are now in effect.

Click here to visit the Chicago Vaccine Requirement webpage, with FAQs, required signage, vaccination locations, and more.

Click here for more information on Cook County's vaccine requirements, which align with the city of Chicago.

Foodware Upon Request Ordinance Effective January 18 in City of Chicago

On Tuesday, January 18, the city of Chicago’s ordinance that regulates the offering of single-use foodware at takeout or delivery from restaurants will go into effect. The ordinance requires restaurants to provide single-use foodware - such as napkins, disposable utensils, or condiment packets - for delivery or takeout only upon request from the customer or at a self-service station.

These requirements do not apply for on premises dining and there is an exemption for drive-thrus. Restaurants will also be required to post signage at their establishment to inform customers of the regulations.

Click here to read the ordinance.

In recent weeks, the IRA has learned that due to where the ordinance is codified in Chicago’s Municipal Code, that there are in fact penalties within that chapter for noncompliance. This was not the intent from the sponsors of the ordinance, and the Department of Business Affairs and Consumer Protection (BACP) has made it clear to us that they are primarily focused on educating restaurants and customers about the new ordinance - not on issuing fines.

BACP is hosting a webinar on this topic next week, and we will share that information as soon as it is available. Contact Matt Quinn with any questions.