Michigan softens restaurant contact-tracing rule after ACLU complaint

Even as Michigan softened an epidemic order Tuesday to recommend — but not require — bars and restaurants to deny entry to customers who refuse to divulge contact information, some  establishments reported little pushback from customers.

The clarification was listed as an "FAQ" Tuesday on the state Department of Health and Human Services website after the American Civil Liberties Union of Michigan said it worked with Gov. Gretchen Whitmer's administration to make changes.

John Alston, Shae Hill-Alston and Jada Hill-Alston gave their contact information before being seated at Crispelli's Bakery & Pizzeria in Troy.

The FAQ guidance combined with the epidemic order, which went into effect Monday, essentially require a restaurant or bar to request the name and phone number of a customer, but only recommend the denial of entry if the customer refuses to comply with the request. 

A failure to request the information would be considered a violation of the epidemic order.

"We raised several recommendations around these areas," said Bonsitu Kitaba-Gaviglio, deputy legal director for the ACLU of Michigan, noting other changes surrounding data retention and release. "I’m happy that we were able to have that open line of communication.”

The stipulation only applies to restaurants and bars, said Department of Health and Human Services spokeswoman Lynn Sutfin. Personal services, entertainment venues and recreation facilities are still required to deny entry to those who refuse, a requirement that's "been in effect for months without issue," she said. 

"It is our hope that the majority of Michiganders will voluntarily comply with this requirement of restaurants and bars by providing this information that will assist with contact tracing if a positive case is connected with the facility," Sutfin said. 

The epidemic order requiring the contact tracing efforts at bars and restaurants comes as Michigan's cases and hospitalizations are rising.  On Thursday, Michigan again set a daily record of new confirmed COVID-19 cases with 5,710 reported Thursday. The state also added 51 deaths from the coronavirus.

Other parts of Tuesday's FAQ apply to both businesses and restaurants required to collect contact information, including guidance requiring the destruction of the contact information after 28 days, or two COVID-19 incubation periods.

The clarification issued also prohibits a restaurant or business from sharing the collected data with law enforcement, immigration officials or for use for non-public health purposes such as marketing. It should only be shared with and at the request of state or local health officials.

Additionally, the guidance notes that the state health department will only provide the information to law enforcement or immigration officials if it is served with a valid court subpoena.

The ACLU said in a Tuesday statement the guidance "should give people confidence that their personal information will be kept private and used for the very limited purpose of stemming the spread of COVID-19."

Michigan restaurants are thankful for the additional guidance, said Justin Winslow, president and CEO for the Michigan Restaurant and Lodging Association.  But he still expressed concern about the shadow the order cast over restaurants and bars, which have been the source of fewer coronavirus outbreaks in Michigan compared with long-term care facilities, social gatherings or schools. 

"The concept of incentivizing restaurants from the start would have helped,” Winslow said. "That kind of public and private partnership would have been well received and maybe still could be.”

When the policy was first announced, the associations heard multiple concerns from customers and restaurants alike.

"It definitely jolted the industry," said Winslow, noting it raised fears about the safety of restaurants and data privacy.

Restaurant owners and managers said Thursday that most patrons have been pretty cooperative this week with providing their contact information.

“I would say 95% of our customers are more than willing to give their information and understand that it’s just precautionary and it’s really for their own benefit,” said Mary Curry, general manager of Charlie’s Restaurant in Madison Heights.

“If there is, God forbid, any sort of outbreak, we’re just able to notify them so that they’re not risking their family and most seem to understand that. We had a few, it’s upset them and we let them know it’s within your right to decline and that’s fine and you’re still welcome to dine here.”

At Crispelli's Bakery & Pizzeria in Troy, patrons are asked for their contact information before they're seated. It's written in a notebook that also logs where diners sat in the restaurant.

There's been a little pushback, but all have complied, said Kevin Kocaj, the general manager.

“I’d say probably 10% seem aggravated or like it’s another thing that they got to do, another invasion of their privacy, but I’ve never had to refuse anyone,” he said.

Warren resident Shae Hill-Alston dined at Crispelli's Thursday afternoon with her husband, children and father. They had no issue with providing their contact information, she said.

“I didn’t think too hard on it,” she said. “Our information is already out there.”

Ron McIntyre, kitchen manager at Sabby’s Lounge in St. Clair Shores, said he was initially concerned about being people being reluctant to provide their information. With the exception of one fake name, most have had no issues with it, he said.

“We have an older crowd so they all get it,” he said. “It’s the younger people that want to be smart alecks about it.”

As of Oct. 29, restaurants accounted for 7% of Michigan's new outbreaks and bars accounted for 2%. An outbreak is defined as two or more COVID-19 cases among people who are from different households but may have shared exposure.