Seyfarth Synopsis: On August 12, 2021, the City and County of San Francisco issued an order requiring certain businesses offering food services or fitness services indoors to check for proof of full vaccination. This requirement will apply to patrons 12 years and older, effective August 20, 2021. Staff must be fully vaccinated by October 13, 2021. This order also extended the vaccination requirement to “large” indoor events and to certain healthcare workers, including pharmacists. Other California jurisdictions, including the City and County of Los Angeles have implemented, or are considering, similar requirements.

In response to the growing impact of the COVID-19 Delta variant in California, on August 12, 2021, San Francisco issued an that extended vaccination requirements to three key areas:  businesses with indoor operations offering food and drink services or fitness services; “large” indoor events; and certain healthcare employees.

No Vaccine? No Indoor Food, Drink, or Exercise Services

Starting August 20, 2021, the following businesses with indoor operations in San Francisco must confirm that all patrons 12 years or older are fully vaccinated against COVID-19 before allowing them indoors:

• Operators/hosts of establishments or events where food or drink is served indoors—including, but not limited to, dining establishments, bars, clubs, theaters, and entertainment venues; and
• Gyms, recreation facilities, yoga studios, dance studios, and other fitness establishments, where any patrons engage in cardiovascular, aerobic, strength training, or other exercise involving elevated breathing.

Notably for dining establishments and bars, the vaccine requirement does not apply to patrons picking up “to-go” orders. Likewise, dining and gym patrons who step inside to use the restroom if dining or exercising outside need not show proof of vaccination. The order also does not apply to food and drink provided as part of a religious ceremony.

How and When Do You Have to Check Vaccination Status?

Dining establishments and bars do not necessarily need to assign an employee to check vaccine status at the front door, however—confirmation before entry is San Francisco’s preferred compliance method. The FAQs permit restaurants and bars to check an indoor patron’s vaccine status when a customer first interacts with staff (e.g., when ordering, checking in at host stand).

In addition to confirming vaccination status, covered businesses must confirm that all “staff who routinely work onsite” are fully vaccinated. While the order does not set a bright line test for what qualifies as “routine,” the order explicitly notes that individuals who only work indoors at the location on an occasional basis (for example, individuals who deliver goods) are not subject to the order. By August 20, 2021, covered businesses must verify the current vaccination status of their staff, with a deadline of October 13, 2021, for full vaccination.

San Francisco has issued a sample vaccination ascertainment form, which inquires about a staff member’s vaccination status, and provides staff an opportunity to seek an exemption based on a medical/disability or religious belief. Businesses must keep a record of fully vaccinated staff and signed declination forms for those staff eligible for an accommodation exception.

Staff excepted from taking the vaccine due to a legally recognizable accommodation must take a weekly test as part of the accommodation. Notably, however, neither patrons nor staff can currently provide proof of negative test as an alternative to providing their vaccine status.

No later than August 20, 2021, covered business must also post signage for both their patrons and staff, advising them that proof of full vaccination is required for entry.

The Proof Is In The Paperwork.

A CDC-issued vaccination card is not the only means to prove that a patron is fully vaccinated. Rather, San Francisco provides numerous options:

• A CDC-issued vaccination card;
• A physical or digital copy or picture of a vaccine copy (including a picture on a cell phone);
• A doctor’s note; or
• A personal digital COVID-19 vaccine record issued by the State of California or by an approved private company.

In addition to the above, staff (but not patrons) can also provide a written self-attestation of their vaccination status. These attestations must be signed under penalty of perjury and list the type of vaccine taken and date of the last dose.

Hybrid Is As Hybrid Does

Hybrid establishments—for example, a wine store that holds occasional tastings—may have difficulty determining whether and how to comply with the order. In addressing theaters’ concession stands, the order provides that the theater cannot sell concessions to unvaccinated individuals, but that the theater may check vaccination status at the concession stand rather than at the entrance. The order’s FAQs further clarify that malls, retail establishments, and grocery stores that offer indoor dining (instead of just to-go) and similar concession areas will have to check vaccination status in the area devoted to indoor dining. Hybrid establishments, therefore, could presumably follow similar protocols, but such establishments are encouraged to reach out to legal counsel to discuss their particular situation.

Passing a Test Won’t Help You Blend Into the Crowd

The order requires proof of full vaccination for attendees, staff, and performers of “large” or “mega” indoor events who are over 12 years old. “Large” events are defined as events—whether public or private—involving 1,000 to 4,999 people, and “mega” events are 5,000 or more people. Thus, in San Francisco, a negative COVID-19 test will not be sufficient for either type of event (unless an accommodation is required by federal, state or local law). This makes San Francisco’s requirements more restrictive than California’s statewide guidance, which (1) do not apply to indoor gatherings under 5,000 people, and (2) for indoor gatherings of 5,000 people or above, allow a negative COVID-19 test within 72 hours in lieu of proof of vaccination.

There is also a limited exception for ticketed events occurring before September 15, 2021, which sold tickets before August 12, 2021—these events can accept proof of a negative COVID-19 test.

Upping the Ante for Certain Workers In Healthcare and High-Risk Settings

The San Francisco order also expands upon California’s vaccination and/or testing requirement for workers in high-risk settings and in certain healthcare facilities. Under the California Department of Public Health’s recent orders, workers in healthcare and in certain high-risk settings are required to be vaccinated unless they qualify for a medical or religious exemption and/or frequently tested for COVID-19.

San Francisco now extends the vaccination requirement to all healthcare personnel in adult care facilities, adult day programs licensed by the California Department of Social Services, and dental offices, as well as certain high-risk settings such as homeless shelters and jails. Unless an employee in these settings qualifies for a medical or religious exemption, there is not an option to be tested regularly rather than vaccinated. In addition, all home healthcare workers and pharmacists must be fully vaccinated or qualify for a medical or religious exemption.

And, similar to the state orders, San Francisco is requiring any medical exemption requests to include a written statement signed by a licensed medical professional stating the individual qualifies for the exemption (without identifying or describing the medical condition or disability), and the probable duration of the inability to receive the vaccine.

Los Angeles Follows Suit

Not to be outdone, the Los Angeles County Health Department issued an order requiring health care workers to be vaccinated. The order largely tracks the recent state order discussed above, but it adds several high-risk settings, such as dental offices, congregate living, and home care settings, and has a broader definition of worker that includes contractors, students, and volunteers. FAQs can be found here.

In addition, both Los Angeles City and County are considering mandates for patrons in certain indoor facilities. On August 4, 2021, councilmembers of the City of Los Angeles introduced a motion directing the City Attorney to “prepare and present an ordinance that would require eligible individuals to have received at least one dose of vaccination to enter indoor spaces.” The motion was approved on August 11, 2021. Once drafted, the regulations will be considered by the City Council and likely approved.

On August 10, 2021, the Los Angeles County Board of Supervisors directed its Department of Public Health to report back within 14 days on options for requiring vaccines in “certain indoor public spaces in the County of Los Angeles.” The County explicitly noted that it would be looking to the impact of similar vaccine requirements in Any future mandate would likely only apply in the unincorporated parts of the County.

Other California jurisdictions, including Palm Springs and Cathedral City, have implemented vaccination and/or negative testing requirements for patrons of indoor restaurants and bars.

Workplace Solutions

Covered employers must rapidly adopt and adjust their COVID-19 vaccination verification procedures. Orders imposing vaccine mandates for employees in certain high-risk sectors and patrons certain indoor settings are cropping up across the country and within California. California is particularly challenging because of the patchwork of local orders.

Consult your Seyfarth attorney, including any member of Seyfarth’s Workplace Safety Team, to ensure that your business is in compliance with the ever-changing COVID-19 rules and regulations.

Edited by Coby Turner