On Thursday, August 12, 2021, the San Francisco Department of Public Health (SFDPH) published an order strengthening the COVID-19 safety requirements applicable to many business establishments and even spaces in the City and County of San Francisco (the “Order”).  As outlined below, the Order requires significant new vaccine mandates for San Francisco businesses operating (1) Indoor Food and Drink and Fitness Facilities; (2) Large Outdoor and Indoor Events; and (3) High Risk Care or Living Settings and Other Health Care Facilities.

 

Requirements for Indoor Food and Drink and Fitness Facilities

Proof of Full Vaccination Requirement for Patrons

As of August 20, 2021 individuals 12 and older, must provide proof of full vaccination (meaning, two weeks after completing the entire recommended series of an FDA-approved COVID-19 vaccination) for entry into the following indoor establishments in the City and County of San Francisco:

  • Establishments where food or drink are served indoors, including, but not limited to, dining establishments (i.e., restaurants), 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.

Vaccination requirements do not apply to religious ceremonies where food and drinks are served or to fitness and activities that are part of K-12 school or youth programs.

Individuals who do not provide proof of full vaccination may continue to use outdoor portions of covered establishments and may come indoors to use the restroom, provided they are wearing a well-fitted mask, which does not include scarfs, ski masks, balaclavas, bandanas, or any other single layer fabric.

Proof of Full Vaccination Requirements for Staff

By October 13, 2021, the above establishments must ensure all staff who routinely work onsite provide proof of full vaccination before entering or working in any indoor portion of the facility.  Between August 20 and October 13, 2021, the above establishments must use their “best efforts” to ascertain the vaccination status of all staff who routinely work on site.  The City has provided a form which employers can use for this purpose.

Proof of full vaccination is required at the above establishments regardless of capacity or the number of patrons.  However, proof of vaccination requirements for patrons and staff of food and drink establishments do not apply to establishments that only function for takeout or delivery.

The above requirements are subject to accommodation requirements and continuing obligations under federal, state, and local law.

Requirements for Large Outdoor and Indoor Events

Vaccination Requirements for Indoor Mega Events and Large Indoor Events

Beginning August 20, 2021, Large Indoor Events and indoor Mega Events must require proof of full vaccination for all attendees 12 and over, per the above proof of full vaccination requirements.  Beginning October 13, 2021, Large Indoor Events and indoor Mega Events must also require proof of full vaccination for all staff, per the above proof of full vaccination requirements.  Similarly to indoor food and drink and fitness facilities, personal attestation that a person is vaccinated, whether oral or written, without one of the above types of full vaccination proof, is not an acceptable form of vaccination proof for Large Indoor Events and indoor Mega Events.  Proof of vaccination for both attendees and staff is recommended, but not required, for indoor events with fewer than 1000 attendees where food and drink is not sold and for all outdoor events.

The term “staff” in relation to Mega Events and Large Indoor Event requirements, does not include performers, players, or other visiting individuals who are not employed by the operator of the event, for instance, visiting teams and independent performers.  Therefore, proof of vaccination, while recommended, is not required to these non-staff workers.  Instead, these non-staff workers must remain six feet away from the public at all times, provide proof of a negative COVID-19 test within 48 hours of the event, wear a mask at all times not performing, and remain away from areas where food or drink is served indoors.

Again, the above requirements are subject to accommodation requirements and continuing obligations under federal, state, and local law.

Planning Requirements for Large Outdoor and Indoor Events

The Order also requires operators of outdoor or indoor “Mega Events” and “Large Indoor Events” to submit a proposed plan to the San Francisco Health Officer (HealthPlan@sfcityatty.org), detailing the procedures to be implemented to minimize the risk of transmission among patrons and personnel.  A “Mega Event” is any outdoor event with more than 10,000 people, or any indoor event with more than 5,000 people, in attendance.  A “Large Indoor Event” is one with 1,000 – 4,999 people in attendance.  Proposed plans must be submitted by email at least 10 business days prior to the event or the date tickets will be sold, whichever is earlier.  If tickets were already sold prior to August 12, 2021, a plan must be submitted by September 11, 2021 or 48 hours before the event, whichever is earlier.  Proposed plans must include the following information:

  • Event details including the event’s date, time, expected capacity, location, and type of event;
  • Contact name for the event (i.e., a person who can be reached in the event of an outbreak and/or who can be contacted to discuss the proposed plan);
  • An explanation of how the host or organizer will have attendees meet requirements for providing their vaccination status;
  • An explanation of how the host or organizer will communicate to attendees:
    • Information regarding full vaccination requirements (indoor Mega Events and Large Indoor Events) and recommendations (outdoor Mega Events); and
    • The safety measures being taken;
  • If the event is being held indoors, an explanation of how the host or organizer will adhere to the Face Covering Requirements and Appendix A of this Order; and
  • A description of the strategies that will be implemented to avoid stagnant crowds (including traffic flow, advanced ticketing, touchless payment, etc.).

Requirements for Personnel in High Risk Settings and Other Health Care Settings

The Order also includes vaccination and record keeping requirements for Personnel in High Risk Settings and other health care settings.  High Risk Settings is defined as care and living settings involving many people, including many congregate settings, where vulnerable populations reside out of necessity.  For instance, High Risk Setting includes acute care hospitals, skilled nursing facilities, intermediate care facilities, residential care facilities for the elderly, homeless shelters, and jails.  Personnel in other health care settings covered by these requirements include, those working in adult care facilities, adult day programs, dental offices, and those who are home health care workers and pharmacists.  “Personnel” means employees, contractors, subcontractors, independent contractors, vendors, volunteers, individuals who regularly provide services onsite, and “gig workers” who work via an app or online interface.

Specifically, business and entities with Personnel in High Risk Settings and other health care settings in the City of San Francisco must:

  • By September 15, 2021, ascertain the vaccination status of all Personnel in High Risk Settings and ensure that all Personnel who routinely work onsite and are not subject to any exceptions are fully vaccinated before such Personnel enter the High Risk Setting.
  • By October 13, 2021, ensure that all employees who work in High Risk Settings are fully vaccinated, unless otherwise subject to an exception.
  • By October 13, 2021, ensure that all employees who work in other health care settings (adult care facilities, adult day programs, dental offices, and those who are home health care workers and pharmacists) are fully vaccinated, unless otherwise subject to an exception.

Vaccination Exceptions for Personnel in High Risk Settings and Other Health Care Settings

Personnel may be exempted from the above full vaccination requirements by submitting a declination form signed under penalty of perjury for any of the following reasons:

  • The individual is declining vaccination based on a sincerely held religious belief, practice, or observance; or
  • The individual is not receiving a COVID-19 vaccine due to a Qualifying Medical Reason, evidenced by a signed statement from a physician, nurse practitioner, or other licensed medical professional practicing under the license of a physician stating that the individual qualifies for the exemption and indicating the estimated duration of the individual’s inability to receive a vaccine.

Exempted Personnel are required to get weekly or twice weekly COVID-19 tests (depending on the type of High Risk Setting or other health care setting in which they work) and wear a face covering compliant with prior requirements for workers in High Risk Settings at all times at their worksite.

Record Keeping Requirements

Businesses and entities operating High Risk Settings and other health care settings must maintain the following records:

  • Records of Personnel vaccination and exemption status, which must be provided to public health authorities within one business day of any request;
  • Full name, date of birth, vaccine manufacturer, and date of vaccination administration for first and, if applicable, second dose for all fully vaccinated Personnel;
  • Signed declination forms and written health care provider statements for unvaccinated Personnel.

Employers are permitted to request additional information and documentation to verify vaccination status to the extent permitted under the law.

Face Covering Requirements

The Order continues to mandate the wearing of well-fitted masks for all individuals, including fully vaccinated persons, in indoor public settings and in all transportation other than private vehicles, and requires all businesses to display signage reminding individuals of COVID-19 prevention best practices to reduce transmission.  Other common exceptions to the face-covering requirements include: delineated medical or safety exceptions, while actively eating or drinking, while showering, sleeping, or engaging in personal hygiene that requires mask removal, children under 2 years of age, and when alone or with a member of one’s household in a completely enclosed space within indoor public setting, such as an office.

Acceptable Types of Vaccination Proof

Acceptable proof of full vaccination includes:

  • A CDC vaccination card, including the person’s name, vaccine type, and date of last dose;
  • A foreign equivalent of a CDC vaccination card;
  • A physical or electronic photo or copy of a vaccination card;
  • Documentation of vaccination from a healthcare provider; or
  • A personal digital COVID-19 vaccine record issued by the State of California through myvaccinerecord.cdph.ca.gov, or similar documentation issued by another state, local, or foreign government, or approved private company.

Personal attestation that a person is vaccinated, whether oral or written, without one of the above types of full vaccination proof, is not acceptable.  All establishments subject to the Order’s proof of full vaccination requirement must crosscheck each individual’s proof of vaccination with the person’s photo ID.  Therefore, a person may not enter any establishment that requires proof of full vaccination without both (1) one of the approved forms of vaccination proof; and (2) a photo ID.  Additional photo identification is not required if an approved digital vaccine record includes photo identification.  The Order does not address procedures for suspected fraudulent proof of vaccination.

San Francisco employers and business operators should carefully review their policies and procedures related to vaccine, mask, and safety requirements to ensure compliance with the Order.  Vaccine, mask, and safety requirements evolve and change often; employers and business operators should stay up to date on any developments and reach out to their counsel with any questions or concerns regarding compliance.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics.