Restaurants, bars and nightclubs in some of the most populous cities and counties in California must now verify that customers are fully vaccinated for COVID-19 before allowing them in.  The requirements potentially place employees in harm’s way and expose venues to new risks.  This post shares suggestions culled from our experience advising hospitality clients confronting this new challenge.

Jurisdictions requiring such businesses to verify customers’ vaccination status include the City and County of Los Angeles, West Hollywood, San Francisco, Berkley and Contra Costa County, and the list is growing.  The typical requirement is that businesses verify that each patron 12 years of age or older is fully vaccinated.

The requirements make hosts, hostesses, bartenders and others the employer’s front line in engaging with patrons and requiring they show proof of vaccination and ID.  Businesses must check verification status on the patron’s “first in-person interaction with staff,” under the City of Los Angeles ordinance, for example.

Key challenges hospitality venues are confronting and our suggestions include:

  1. Set Customers’ Expectations in Advance.

Customers becoming upset or worse due to being asked to prove they are vaccinated is less likely if the business makes it known before customers arrive that it requires verification of vaccination status.  Hospitality operators can set expectations by posting prominent notices on the restaurant’s website, social media pages and signage, including outdoors close to entryways.  When taking reservations, staff can remind customers that the restaurant will verify that each guest is fully vaccinated before the guest is seated.

All of these communications can and should be accomplished in a gracious manner that makes clear the restaurant is acting out of a wish to safeguard guests and staff.

Frankly, if a business loses a potential customer because the customer learns in advance they will have to prove vaccination status, that person is probably not one the venue wants to deal with onsite.

  1. Support Your Employees!

The staff members asking to verify customers’ vaccination status must feel —  and be — fully supported by the business.  Action items include:

  • Train employees on de-escalation techniques.
  • Give employees back-up. Make sure employees know who to call at what stage in a conflict.  Employees need to be able to quickly summon a manager or security and know they are free to – and should — call 911 if they the circumstances warrant it.
  • Post two employees, instead of one, at host stands or other entry points so a single employee is not in the position of handling a group of belligerent patrons.
  • Consider stationing paid security personnel at entry points, particularly, for example, at bars or nightclubs that may draw unruly patrons.
  • Install video recording at hostess stations and other entry points so that, if a conflict or violence occur, the business has a record, for its own protection, of what happened.
  1. Train Employees to Handle Customers Claiming to be Exempt.

The law generally requires businesses to accommodate patrons who cannot be vaccinated because of a medical condition or restriction or due to a sincerely held religious belief.  If an employee does not know in advance how to manage customers claiming to be exempt from the vaccination requirement, the interaction with the customer will not go well.  Employees need to know what will, and will not, satisfy the exemptions.  They need to know how far, and how far not to go, in asking for medical or disability-related information, as the customer retains a right of privacy in such information.

The bar set by the City of Los Angeles ordinance for satisfying an exemption, for example, is low.  The customer must only self-attest that they qualify for one of the two exemptions.  The ordinance does not require the attestation to be written and does not require that the customer provide any proof of a medical condition or religious faith.  Effectively, the business must take the customer’s word that they meet one of the two exemptions.

Where patrons qualify for an exemption, the ordinances typically impose additional limitations the business must enforce, e.g., keeping the exempt customer in outdoor sections of the premises, requiring masking, etc.  Employees need to be familiar with these requirements and trained in enforcing them.

  1. Avoid Discrimination Claims by Customers!

California’s Unruh Act makes it unlawful for “all business establishments of every kind” to discriminate against customers in services, use of facilities and otherwise on protected grounds, including disability, immigration status, race, medical condition and other characteristics.  Hospitality venues must not subject only customers of certain races, those perceived to be immigrants, or those with disabilities or medical conditions, for example, to vaccination verification or masking requirements different from other customers.  Imposing such requirements on a selective basis may expose the business to liability, including under the Unruh Act.

  1. Customer Relations – Get Out in Front of it.

Fumbling efforts to verify customers’ vaccination status has the potential to seriously undermine a venue’s relationships with customers and reputation.  Lack of a thoughtful, coordinated approach to performing vaccination verification will likely lead to offended, upset customers who will not return.  On the other hand, considerate messaging planned in advance and deft handling of customers will contribute to protecting employees and safeguarding or enhancing customer relations.

Please contact the author or any attorney in labor and employment practice group in our Los Angeles office to discuss these issues more fully.

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.