Today, following the recent U.S. Supreme Court decision blocking enforcement of the Emergency Temporary Standard (ETS) that mandated employers with 100+ employees to require COVID-19 vaccination or weekly testing, the Occupational Safety and Health Administration (OSHA) officially withdrew the ETS. You can see the full notice here. In the announcement, OSHA stated that “[it] is not withdrawing the ETS to the extent that it serves as a proposed rule.” Given the breath of the U.S. Supreme Court opinion with regard to OSHA’s ability to promulgate such a mandate, it will be interesting to see if OSHA does attempt to revive the mandate through a non-ETS regulatory process. You can read the U.S. Supreme Court’s decision here. We will continue to track this issue.

The Louisiana Restaurant Association is pleased to announced the hiring of Will J. DuBos as its Director of Government and Public Affairs. His role will focus on supporting the LRA’s interest in state and local issues, the Louisiana Legislature and the Executive Branch. Additionally, he will serve as staff executive for the LRA’s Hospitality Political Action Committee, which supports industry-friendly elected officials and candidates across the state.
 
“When we decided to enhance our advocacy approach, we chose to create a new position that would provide year-round engagement at the State Capitol and across the state to bolster the relationships that I built as CEO and our contract lobbyist team supported,” said Stan Harris, President and CEO of the Louisiana Restaurant Association. “Finding someone with Will’s education, background, and existing relationships should help elevate our industry’s voice. We are pleased to welcome him to our team.”
 
The son of Margo and Clancy DuBos, former longtime owners of the New Orleans alt-weekly Gambit, which covers Crescent City politics and restaurants extensively, DuBos developed a love for politics and good food at an early age. “Food and politics were the two most frequent topics of conversation in our home,” says DuBos. 
 
DuBos is a licensed attorney with experience in governmental relations, most recently, for Advanced Strategies, Inc., representing the Louisiana Video Gaming Association and the Franciscan Missionaries of Our Lady Health System. DuBos previously worked at Top Drawer Strategies after graduating from Louisiana State University’s Paul M. Hebert Law Center in 2019.
 
While an undergraduate at LSU, DuBos worked as an aide to former Senator Danny Martiny and then messenger in the Louisiana State Senate. There, he developed an up close and personal knowledge of the legislative process. By the time he entered law school, he had honed his political instincts, particularly while working for four years as the aide to former State Senate President John Alario, Jr.

New survey from National Restaurant Association shows 10,000 jobs saved with first round of RRF Funding

​The Louisiana Restaurant Association (LRA) today released new survey data highlighting the devastating impact the omicron variant has had so far, and the positive impact the Restaurant Revitalization Fund (RRF) had on the Louisiana industry. According to National Restaurant Association analysis, the first round of RRF funding saved more than 10,000 Louisiana restaurant jobs.
 
In addition, the survey found:

• Nearly 60% of restaurant operators that did not receive RRF grants feel it’s unlikely that they will stay in business beyond the pandemic without a grant.
• 98% of restaurant operators that applied for an RRF grant, but did not receive funding, said a future grant would enable them to retain or hire back employees. 

 
“This highlights how impactful RRF replenishment would be. The National Restaurant Association estimates indicate that full replenishment of the RRF will save an additional 20,000 Louisiana restaurant jobs,” said Stan Harris, President and CEO of the Louisiana Restaurant Association. “The RRF was a critical lifeline to many, but far more remain on the sidelines, desperately looking for support amidst continued economic uncertainty. The decisions Congress could make in the coming weeks will be critical toward the future of the restaurants that are so proud to serve our communities.”
 
The restaurant industry was hit hard by the latest surge of COVID-19 cases caused by the omicron variant. Forced to adapt to deteriorating consumer confidence, restaurants reduced hours/days of operation, cut seating capacity, and shutdown, pivoting to off-premises dining with the end result being lower sales volumes in 2021 than in 2019.
 
According to the survey, we know:

• 87% of Louisiana restaurants experienced a decline in customer demand for indoor on-premises dining in because of the omicron variant.
• 65% of Louisiana operators report that business conditions are worse now than three months ago.
• 79% say their restaurant is less profitable now than it was before the pandemic.

 
“The new data show that restaurant recovery is paralyzed and nowhere near complete. The restaurant industry is at an inflection point, and Congress must act now to replenish the RRF,” said Harris.
 
As a result of these findings, we are asking restaurateurs to take action here and tell Louisiana senators to support the replenishment of the Restaurant Revitalization Fund.
 
The Louisiana findings were provided by the National Restaurant Association Research Group, which conducted a COVID-19 Restaurant Impact Survey of 4,200 restaurant operators Jan. 16-18, 2022. Read the report of key Louisiana findings here.

The Louisiana Restaurant Association announced its 2022 volunteer leadership with Michael Boudreaux as its Chair. Boudreaux has been in the business since 1997, when he began as the “Bloomin’ Onion guy” at the Outback Steakhouse. In the 30 years since, he has honed his restaurant business acumen at several notable Baton Rouge restaurants including Juban’s, Beausoleil, Christina’s and Adrian’s. Boudreaux now co-owns and operates SoLou Patio Restaurant Bar and will soon reopen the Capitol City staple Juban’s, which is undergoing a renovation and set to reopen in April 2022. He has served on the LRA’s Board of Directors since 2008 and has been active in the LRA’s Greater Baton Rouge Chapter for many years.
 
“The greatest value of LRA membership is access to unlimited industry-specific resources– from workers’ comp insurance to the ProStart program,” explained incoming Chair Michael Boudreaux. “There’s a wealth of information that helped guide me in the right direction as a young restaurateur, and now, I simply want to help others grow just like the organization did for me years ago.”
 
“I’ve known Michael for over 20 years, first as a competitor and later as a colleague on our LRA Board,” said LRA President & CEO Stan Harris. “Our leaders early in my tenure had their eye on him for future leadership and noted his friendly personality and willingness to get things done. We are fortunate to have him as our 2022 State Chair and to quote LRA past Chair Peter Sclafani, ‘we want him to be Michael Boudreaux!’”
 
The 2022 officers of the LRA:
 

• Michael Maenza, Vice Chair— Maenza is the owner of MMI Culinary, 12 Seasons & Mr. Mudbug Catering Company and SWEGS Kitchen in New Orleans
• Alan Guilbeau, Treasurer—Guilbeau is the Executive Vice President of Business Development of PJ’s Coffee & Tea of New Orleans and New Orleans Roast Coffee & Tea
• Mark Latter, Secretary–Latter is owner of Latter Hospitality including The Bower, The Bower Bar, Birdy’s Behind the Bower and Tujague’s Restaurant in New Orleans
• Octavio Mantilla, At-Large, Mantinlla is the co-owner of BRG Hospitality including Cho Thai, Domenica, Luke, Pizza Domenica, Restaurant August, Shaya and Willa Jean in New Orleans

​In their final meeting of 2021, the Louisiana Restaurant Association Workers’ Comp Board of Trustees elected two new members, Kyle Brechtel and Mark Hawley, both of New Orleans.
 
Kyle Brechtel is the President and CEO of Brechtel Hospitality and has been a member of the LRA and the LRA Workers’ Comp since 2002. Brechtel Hospitality operates nine concepts including Walk-On’s Sports Bistreaux, Copper Vine Wine Pub, Bonfire Events + Catering, Vintage Rock Club, McAlister’s Deli, Acme at Harrah’s Casino and Fulton Alley, all in the Greater New Orleans area. Brechtel has an MBA in Finance from Tulane A.B. Freeman School of Business and an Bachelor of Science in Finance from LSU and has previously served as a LRA Workers’ Comp trustee.
 
Mark Hawley has served as the Financial Controller and Treasurer of Dickie Brennan & Co. and its restaurants since 2015, when he began as senior accountant. He is responsible for all financial functions including accounting, treasury and financial strategy. Earlier this year, Mark was elected treasurer to the company’s Board of Managers and he holds a Master of Accountcy from the University of Mississippi’s Patterson School of Accountancy, a nationally recognized top 10 accounting college.
 
LRA Workers’ Comp is a homogeneous fund providing workers’ compensation to Louisiana’s hospitality industry and related businesses.

Prior to last year’s legislative session, all restaurants who purchased fresh seafood were required to obtain a Retail Dealer license from the Department of Wildlife and Fisheries annually. This license was eliminated during a reworking of the department’s fee structure.
 
Beginning in 2022, previous holders are now required to purchase a Wholesale/Retail Dealer license. This process was automatic for retail dealers who renewed their 2022 license online and many may not realize the license has changed.
 
Anyone who possesses a Wholesale/Retail Dealer license is required to report landings or lack of landings via the department's trip ticket program. The form associated with this requirement is below. Please note there is a yearly reporting option available on the MS2 document. You would enter your dealer license number, the last four digits of your tax ID or SSN, and the license year. If you aren’t purchasing directly from fishermen and don’t sell your catch directly to consumers, you can mark these boxes under the “YEARLY REPORTING.” 
 
This will satisfy reporting requirements for that license year until it is renewed the following year. Wildlife and Fisheries staff is working to add an insert to its license mailer to bring further attention to this change for previous retail license holders.

FREQUENTLY ASKED QUESTIONS:
Do all restaurants who serve seafood need this license?
No, restaurants are exempt if they sell only fully prepared seafood products for immediate consumption. If a restaurant sells raw oysters or sushi (raw seafood) a Wholesale/Retail Dealer license is required.

Where can I find the license application?
https://www.wlf.louisiana.gov/assets/Licenses_and_Permits/Files/commercial_for-hire_licenses_app.pdf

Is there a deadline?
The 2022 license year began on Nov. 15, 2021. This is an ongoing permit you retain annually.

Questions regarding trip tickets or Monthly Submission Sheets, contact the LDWF Trip Ticket Office at (225) 765-2449.

The Supreme Court just blocked OSHA’s vaccine ETS from being enforced for the foreseeable future, meaning your compliance to-do list has gotten significantly shorter – but it has by no means disappeared. While today’s 6 to 3 SCOTUS decision means you no longer have to follow the January 10 deadline, this Insight will provide you a practical six-step priority list to guide you on your way during the days ahead.

What Happened?

Technically, the Court didn’t kill the ETS for good, but the long-term prognosis is not looking good. SCOTUS reapplied the temporary injunction that once again blocks OSHA from enforcing the ETS for the time being while the parties continue to battle in lower courts over whether the emergency rule is valid. There are two ways that the rule could come back to life in its original or a revised form:
​

• There is an unlikely chance that the Sixth Circuit Court of Appeals – which will take over the case from here – could determine that the rule is valid and breathe new life into it sometime in the coming weeks and months. However, even if that happened, the ETS would face a steep hill to survive a challenge on the merits if the case is brought up before SCOTUS once again.
• OSHA’s ETS was only designed remain in place for six months, after which it must be replaced by a permanent standard. If the workplace safety agency wants to continue this fight, stay tuned for a formal rulemaking process that could see a formal regulation published on or before May 5. 
  
  

1. Highest Priority: Complete Your Administrative ObligationsIf the ETS comes back online in the coming weeks and months as explained above, or if OSHA issues a permanent regulation along these lines, you can be sure that the agency will take an aggressive approach to enforcement. OSHA will most likely indicate that it expected employers to develop their compliance approach during this limbo period and be at the ready to launch their efforts immediately. For this reason, the most conservative approach is continuing your work on the following key administrative obligations:
   • Create Roster – You can gather vaccine status information on your workforce and develop the required vaccination roster for employees, noting whether or not they are fully vaccinated. The EEOC has confirmed that you can lawfully ask employees their vaccination status without violating federal anti-discrimination laws(provided the question is limited to a yes-or-no response) and HIPAA does not prevent employers and businesses from asking their employees and visitors whether they have been vaccinated against COVID-19 and for proof of such vaccination.
   • Develop Policies – Depending on your decision, develop vaccine and/or testing policies – and make sure they are adapted to your own unique workplace. While you have no immediate obligation to roll them out, you should have them at the ready just in case – or feel free to introduce them now. Most employers are permitted to institute such a policy at your workplace even if the government is not forcing you to do so (unless you operate in a state restricting mandatory vaccine policies). At a minimum, the policy should include requirements for:
     • employees to report positive COVID-19 tests;
     • positive COVID-19 employees to be removed from the workplace;
     • paid leave for employees to get vaccinated; and
     • ensuring unvaccinated and not fully vaccinated employees wear face coverings when indoors or when occupying a vehicle with another person.
   • Educational Sessions – You may want to develop programs that would allow you to conduct compliance training for your managers and deliver information about your policies to your employees. 
     
     
2. Decide if You Want to Impose Your Own MandateThe next step is to decide if you want to require vaccinations at your workplace. It is still permissible to impose your own vaccine mandate in most locations, regardless of SCOTUS’s decision. Check this list of states and coordinate with your workplace law counsel to determine if you can proceed with a mandate at your place of business.
   But while the law may be squarely on your side, it is important to consider issues relating to vaccine mandates before acting. Accordingly, while most employers can require employees to receive the vaccination in order to remain in the workplace, you should not adopt such a policy before considering six important issues:
   • Identify known concerns among your workforce and provide information to help employees understand how vaccinations can reliably promote health and safety for themselves, co-workers and others.
   • Taking into account the unique environment at your business, figure out the best way to communicate your policy to employees, including how much notice to provide before implementing the requirement.
   • Consider related logistics, including compensation issues that may be implicated.
   • Develop a robust and clear reasonable accommodation policy to address religious and disability issues, taking special care to communicate and administer the accommodation process in a thoughtful way, with emphasis on individualized, confidential consideration of each request.
   • Spend time considering how your employees, customers, and other constituents are likely to respond to the policy, including how you will handle responses such as those described above.
   • Developing a designated team for coordinating this entire process.
     
     
3. Consider Creating Safety Obligations for Non-Vaccinated EmployeesYou can also require those who do not prove their vaccinated status to comply with additional safety restrictions as necessary to maintain a safe working environment. These can include masking requirements, social distancing rules, restrictions on business-related travel, and other concepts relevant to your work environment. Whatever you decide, you will want to announce these requirements ahead of time, so it does not appear as if you are individually targeting certain workers. You will want to craft your policies thoughtfully, with regard to your specific workplace, and in coordination with your workplace law counsel so as not to create the perception that your rules are punitive or coercive.
   
   
4. Determine Whether You Will Institute a Testing Requirement for the Non-VaccinatedYou can require regular COVID-19 testing of all non-vaccinated personnel to ensure the highest level of workplace safety. To do so, you should consider four main points:
   • Communicate the new policy with your workforce in a clear and direct manner. You may want to use a combination of methods: electronic through company digital services, an all-employee meeting where you can walk through the rationale and the new protocols, and through written materials handed out to all workers. Whatever forms of communication you choose, emphasize that the sole purpose of this policy is to maintain a safe workplace.
   • Determine how often you will test those employees who do not or cannot prove they have been vaccinated, taking into account the unique safety-related concerns that arise at your workplace. You will want to require frequent-enough testing that the system reasonably catches potential outbreaks of COVID-19, but not so frequent that it seems your testing requirement is simply punitive in nature.
   • Ensure that your protocols for required testing comply with applicable wage and hour laws. Time spent on receiving employer-required tests should almost always be treated as compensable.
   • Finally, you may want to take into consideration the ability of your workers and your organization to obtain COVID-19 tests in your community before instituting your policy or setting its parameters. It is expected that tests will become more widely available in the coming weeks and months, so you might want to take a wait-and-see approach in this regard.
     
     
5. Consider Imposing a Health Insurance Surcharge on Non-Vaccinated WorkersSimilar to a nicotine surcharge that many employers already have in place as part of their wellness programs, you can impose an additional surcharge on health insurance premiums for those who are unvaccinated. Before considering any health insurance surcharge, you should make sure you understand state and federal law regarding this option. For a comprehensive analysis of this option, please review our Insight: “6 Employer Questions to Answer Before Imposing a Surcharge on Unvaccinated Workers.”
   
   
6. Keep Vaccine Incentives in MindThe final consideration falls into the “carrot” category, foregoing any “stick” – offering incentives to any worker who can prove they are fully vaccinated. The most common incentives employers have offered include cash, gifts, or paid time off. Thanks to clear guidance from the EEOC, you have simple directions to ensure you don’t run afoul of any discrimination laws if you decide to offer incentives:
   • If your employees voluntarily provide documentation confirming they have been vaccinated and got the shot on their own from a pharmacy, public health department, or other health care provider in the community, you can offer them any incentive you’d like with no apparent limitations.
   • If your organization (or an entity acting on your organization’s behalf) administers the vaccine, you can still offer incentives – but they cannot be so substantial in value as to be considered coercive.

Last week the National Restaurant Association launched its latest operator survey to gather data to help advocacy efforts across the country. We know that just a few weeks ago we received our Louisiana-specific results to the previous survey. However, this survey is more advocacy focused and asks specific questions about:

• Omicron impact
• RRF
• ERTC
• Tip credit​

Thank you in advance for your participation! 
​