As of Monday, restaurants, bars, malls, gyms, yoga studios, movie theaters, sports arenas, hair salons and many other businesses in Los Angeles must begin requiring that patrons show proof of vaccination for COVID-19 before allowing them to enter. The new City of Los Angeles ordinance – named SafePassLA — appears to be the most demanding measure of its type in the country. Fortunately, the City will not begin inspections and other enforcement actions until November 29. Businesses have time to prepare, and this post is meant to help.
The Businesses Subject to the Ordinance are:
- Establishments where food or beverages are served, including restaurants, bars, fast food venues, coffee shops, food courts, etc.
- Gym and fitness venues, including fitness centers, dance studios, Pilates and yoga studios, boxing gyms, etc.
- Entertainment and recreation venues, including movie theaters, concert venues, sports arenas, malls, shopping centers, museums, etc.
- Personal care businesses such as hair and nail salons, barbershops, massage facilities, etc.
The ordinance refers to any business covered by the measure as a “Covered Location.” In order to be a Covered Location, the business premises must include an “Indoor Portion,” meaning a portion of the location “with a roof or overhang that is enclosed by at least three walls.”
All Covered Locations – large and small — are subject to the ordinance regardless, for example, of their permissible occupancy, square footage, annual revenue or any other measure of their size.
Covered Businesses Must Require Proof of Full Vaccination
Effective Monday, November 8, 2021, Covered Locations must require each Patron to show Proof of Vaccination “upon entering an Indoor Portion of a Covered Location.” Patrons on the property but staying outdoors, e.g., outdoor dining, do not have to show Proof of Vaccination. As for Patrons seeking to enter an Indoor Portion, the business must ask to see Proof of Vaccination “upon the Patron’s first in-person interaction with staff.” In addition, for each Patron “who appears to be” 18 years old or older, the business must also see Photo Identification and cross-check it against the customer’s Proof of Vaccination. Acceptable Photo Identification includes a driver’s license, passport, work or school ID, etc. For patrons between the ages of 5 and whoever appears to be younger than 18 years of age, the Covered Location must see only Proof of Vaccination, not also Photo Identification.
“Patron,” in the ordinance, means any person for whom a COVID-19 vaccine is authorized for use by the FDA, including by way of emergency use authorization. Practically speaking, “Patron” means any person five years of age or older.
Under the ordinance, “Proof of Vaccination” means any one of the following: (1) A vaccination card issued by the U.S. Centers for Disease Control and Prevention, which includes the name of the person vaccinated, the type of vaccine provided and date of last dose administered, or similar documentation issued by a foreign governmental agency; (2) a photo of a vaccination card (both sides), which complies with the requirements for a CDC-issued vaccination card. The photo can be hardcopy or stored on a phone or other electronic device; (3) documentation of vaccination from a licensed healthcare provider, which may be the form of proof most commonly held by Los Angeles residents at this time; or, (4) a personal digital COVID-19 vaccine record issued by the State of California or a similar document issued by another state, local or foreign governmental agency, or by a private company.
Further, before allowing a Patron to enter a Covered Location, the business must go so far as to ensure that the Proof of Vaccination shows the person is “Fully Vaccinated,” meaning that the Patron received, at least 14 days earlier, their second dose of the Pfizer or Moderna vaccine or a single dose of the Johnson & Johnson Janssen vaccine.
Businesses are not required to make any notation or record that they checked Proof of Vaccination or Photo ID for any Patron.
Covered Locations are not required to see Proof of Vaccination where Patrons self-attest that they have a medical condition or restriction that qualifies them for exemption or self-attest that vaccination would violate a sincerely held religious belief. The ordinance does not require self-attestation to be in writing. There is no requirement that the Patron meet any criteria to qualify for either exemption or that the business question or test any person’s claim to be exempt. The business simply takes the Patron’s word.
Where the Covered Location determines Patrons to be exempt, the business must allow the exempt Patrons to use only the areas of the premises that are not an Indoor Portion, that is, exempt employees generally must be restricted to outdoor parts of the premises. However, if outdoor portions are “not available” the business may allow the Patron to enter an Indoor Portion so long as they first show Proof of Negative COVID-19 Test and Photo Identification. In other words, where, for example, an outdoor dining area is fully occupied or simply not open at the time, the business may (but is not required to) allow exempt Patrons to use an Indoor Portion, but only if they present Proof of Negative COVID-19 Test and Photo Identification.
“Proof of Negative COVID-19 Test,” under the ordinance, means a printed document, email or text message that sets out the results of a test conducted within 72 hours of the Patron entering the Covered Location and includes the Patron’s name, type of test performed, date of test and negative result. This obligation is an illustration of the time and attention the ordinance will require of businesses and their staff in vetting Patrons and their documentation.
Finally, Patrons who (1) do not show Proof of Vaccination and (2) do not qualify for an exemption, may use the portion of the business premises that is not an Indoor Portion, e.g., outdoor dining, curbside pickup, drive thru, etc. Such Patrons, though, may enter the Indoor Portion for brief periods — in order to use the restroom, order, pick-up, pay, grab food to-go, etc. — so long as they are wearing a well-fitting mask.
The ordinance requires that each Covered Location develop and keep a written record describing their protocol for implementing and enforcing the ordinance.
The City is giving businesses until November 29, 2021 before it begins to enforce the ordinance. On finding violations, City staff are to impose these escalating penalties: On a first violation, the City is to give the business a warning and notice to correct. On a second violation, the City will issue an administrative fine against the business in the sum of $1,000. On a third violation, the fine increases to $2,000. On the fourth violation and each subsequent violation, the fine increases to $5,000. The ordinance will be enforced by inspectors from the City Department of Building and Safety. It is not yet clear what constitutes a “violation.” For example, if three customers are seated in an indoor dining section and the restaurant failed to check their vaccination status, is that one violation or three violations? The City has not yet answered this and other questions.
The Ordinance Penalizes Business, not Unvaccinated Customers
The City ordinance places the burden of restricting indoor areas of covered venues to fully vaccinated patrons squarely on the back of businesses, large and small. Notably, the ordinance does not prohibit unvaccinated customers from entering Covered Locations and does not penalize unvaccinated customers if they present fraudulent vaccination cards or enter indoor areas of covered businesses.
The risks and costs to business and their staff of the City’s approach are many and will be addressed by coming posts here.
Please contact the author or any attorney in the labor and employment practice group in our Los Angeles office for further guidance.
This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.