Back to the Jul-Aug 2020 issue

Can Cities Help Restaurants Expand Their Outdoor Space?

Right of Ways

Q: Because of state restrictions during the COVID19 pandemic, many restaurants and bars want to expand their outdoor space. Can the city help by providing access to sidewalks, streets, and parking lots?

A restaurant employee wipes down an outside dining table.

LMC: The right of way includes the street, as well as the area on either side of the street that supports its use. Cities generally have substantial authority over right of ways within their jurisdictions and may close streets to vehicular traffic through an ordinance or resolution. However, some restrictions affecting state trunk highways will require further approval by the Minnesota Department of Transportation (MnDOT).

To allow restaurants, or any other businesses, to make use of city property, cities may need to make changes to current regulations. This can take the form of an ordinance, resolution, or through an existing permit process. Cities also need a written agreement with the business, and they need to make sure the city is named as an additional insured party on any liability policies. If the business is licensed to serve liquor, the city will want to ensure that the state’s compact-and-contiguous standard for the expanded outdoor space is met. Additionally, cities may want to consider noise and traffic concerns and any local zoning or building regulations.

Answered by Law Clerk Joline Zepcevski:


Q: What should our city be thinking about with regard to the Fair Labor Standards Act and COVID-19?

LMC: There are at least two major issues associated with COVID-19 and the Fair Labor Standards Act (FLSA). First, public-sector employers can put exempt employees on unpaid leave (i.e., a budget furlough) without fear of losing the employee’s exempt status. However, for any workweek in which the employee is furloughed, the employee must be treated as a non-exempt employee. Therefore, the city will need to be careful not to allow the employee to work more than 40 hours during that week or it will need to pay overtime. Typically, a public-sector employer will only furlough exempt employees for an entire week or more for these reasons.

Second, the city should be mindful that non-exempt employees working from home during the pandemic must record and be paid for all hours worked. During the pan­demic, a best practice is to have a clear policy stating that the city expects all non-exempt workers to record their time accurately, and emphasizing that the city must approve all overtime in advance.

Answered by Human Resources Director Laura Kushner:


Q: What are some COVID-19 guidelines for maintaining city restrooms?

A gloved hand cleaning a door handle.

LMC: As your city opens back up, there are several pre­cautions you can take in your city restrooms to prevent the spread of COVID-19. Consider developing a cleaning schedule for employees so that the bathroom is constantly being dis­infected throughout the day. Have the scheduled cleaning employee constantly replenish the toilet paper, soap, and paper towels. If you keep your supply in the bathroom, it could be taken due to the demand for these products right now. Try to avoid having people use a hand dryer after washing hands. Instead, either provide paper towels for them or encourage them to let their hands air dry.

It’s also a good idea to post signs on or near the restroom door with guidelines for social distancing while waiting, for washing hands, and for limiting the number of people in the restroom at one time (one person/family at a time). Learn more about cleaning and disinfecting from the Centers for Disease Control and Prevention at

Answered by Loss Control Representative Michael Neff: