Law Offices of John P. Connell, P.C.: In Massachusetts, any restaurant with a seating capacity of 25 persons or more must have on premises, while food is being served, an employee trained to render assistance to any patron who is choking. M.G.L. c. 94, s. 305D; 105 CMR 590.009(E). Though little known, this law was established in 1980. On October 9, 2012, however, the Massachusetts House of Representatives passed House Bill No. 04469 which would amend this law and expand its application to restaurants with less than 25 seats.
The current law, in its entirety, provides that each restaurant must have both a “device approved…and intended for use in removing food which may become lodged in a person’s throat” and “an employee trained in manual procedures…to remove food so lodged in a person’s throat.” Aside from expanding this law to include smaller restaurants, the pending Bill makes two other amendments to s. 305D as well. First, the Bill removes completely the provision requiring a “device” for removing food and instead requires only a trained employee. The removal of this provision is the result of that device’s unsafe reputation and lack of use in the restaurant industry. Secondly, the Bill adds an exception to the rule, by deeming all take-out only restaurants exempt from the requirement.
The Bill preserves the remaining provisions of s. 305D, which provide that the Department of Public Health shall adopt regulations listing approved manual procedures deemed sufficient for compliance; that each restaurant shall make necessary provisions to insure trained employees; and that any good-faith voluntary attempt to remove food lodged in a person’s throat in an emergency shall not result in civil damages to the assisting person or employee.
The Restaurant and Business Alliance (“RBA”) has voiced its opposition to this pending bill by emphasizing the burden it will place on smaller restaurants. RBA President David Andelman claimed “we should not add more costs to our small businesses” in light of the recent employment decline within the Massachusetts hospitality industry. Yet the theory behind the policy is that safety comes first and less seating does not necessarily make it less likely a restaurant guest will become endangered of choking.
The Bill will go on to Senate for consideration that will continue through the end of the year.
CONTRIBUTED BY COURTNEY MCGEE