San Francisco Implements Expanded Vaccination Requirements

In response to the spread of the Delta variant, the City and County of San Francisco has expanded its COVID-19 vaccination requirements for certain businesses and added food and exercise establishments as covered entities for the first time. The expansion was included in an August 12, 2021, update to the Order of the Health Officer ("Updated Order").

Previously, the Order required COVID-19 vaccination for personnel in "High-Risk Settings" and for personnel and patrons in "Mega Events." The Updated Order makes three major changes:

• 1. Creates a separate COVID-19 vaccination requirement for certain food and exercise establishments;
• 2. Expands the existing High-Risk Setting COVID-19 vaccination requirements to include additional businesses; and
• 3. Alters the rules related to Mega Events and large events.

1. Food and Exercise Establishments

The Updated Order creates a new requirement that certain food and exercise businesses verify the COVID-19 vaccination status of patrons and staff. This requirement applies to:

• Operators or 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.
• 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.

The Updated Order requires proof of vaccination for patrons and staff and imposes different guidelines for each group. The Updated Order does not define "staff" but indicates that the term is narrower than the definition of "personnel" used elsewhere in the Order. Specifically, individuals who enter or work in the facility on an intermittent or occasional basis or for short periods of time (e.g., individuals who deliver goods or packages) are not covered by these requirements.

Proof of Patron COVID-19 Vaccination

Proof of patron COVID-19 vaccination must be verified for all patrons 12 years and older beginning August 20, 2021. Proof must be provided prior to entering an indoor portion of the facility (typically at the entrance or in advance of arrival), with limited flexibility for certain establishments:

• Dining establishments and bars may require proof of patron vaccination status at the time of the patrons' first in-person interaction with staff, provided such patrons are wearing face coverings;
• Dining establishments and bars may allow individuals wearing a face covering to order, pick up, or pay for takeaway orders without requiring proof of vaccination status; and
• Theaters where concessions are sold may require proof of patron vaccination status to be shown at the time of the patrons' purchase of concessions rather than at the entrance to the establishment.

Proof of patron vaccination is not required when using any outdoor portions of the facilities or when coming indoors only to use the restroom, provided patrons are wearing a proper face covering. The requirement for proof of vaccination is subject to any applicable accommodation laws.

Proof of Staff COVID-19 Vaccination

Beginning October 13, 2021, businesses must obtain proof of staff COVID-19 vaccination prior to entering or working in any indoor portion of the facility, subject to applicable accommodation requirements. Additionally, by August 20, 2021, businesses must ascertain the vaccination status of all staff. Both of these requirements apply to staff who routinely work onsite. They do not apply to individuals who work on an intermittent or occasional basis or for short periods of time.

Businesses must keep records of staff vaccination or exemption status. Those records should be kept confidential, but the Updated Order requires they be provided to the Health Officer upon request.

How to Check for Proof of Patron or Staff COVID-19 Vaccination Status

For both patrons and staff, the following forms of proof are acceptable:

• 1. The CDC vaccination card, which includes name of person vaccinated, type of vaccine provided, and date last dose administered, or similar documentation issued by another foreign governmental jurisdiction;
• 2. A photo or copy of a vaccination card as a separate document;
• 3. A photo of a vaccination card stored on a phone or electronic device;
• 4. Documentation of vaccination from a healthcare provider; or
• 5. A personal digital COVID-19 vaccine record issued by the State of California and available by going to myvaccinerecord.cdph.ca.gov or similar documentation issued by another state, local, or foreign governmental jurisdiction, or by an approved private company.
• 6. For staff only, a sixth option is available: written self-attestation of vaccination signed (including an electronic signature) under penalty of perjury and containing the name of the person vaccinated, type of vaccine taken, and date of last dose administered. This option is expressly prohibited for patrons.

Businesses must cross-check proof of vaccination against a form of photo ID unless photo ID is already integrated into the digital COVID-19 vaccine record. If proof of vaccination was presented in advance of arrival, identification must be confirmed at the time of entry into the facility.

Signage

No later than August 20, 2021, businesses must post specific signage aimed at patrons and staff to inform individuals that they are required to provide proof of their full COVID-19 vaccination status. Sample signage can be found here.

2. High-Risk Settings

The prior order imposed certain requirements, including COVID-19 vaccination, on High-Risk-Settings such as general acute care hospitals, skilled nursing facilities, shelters, jails, and other locations. The Updated Order now requires that adult care facilities, adult day programs, and dental offices must comply with the High-Risk Setting requirements, including the requirement that "personnel" be vaccinated. Additionally, businesses with home healthcare workers and pharmacists must comply with a limited number of the High-Risk setting requirements.

These requirements must be satisfied by October 13, 2021.

3. Large Events

The prior order imposed certain requirements, including COVID-19 vaccination and testing, on Mega Events (indoor events with 5,000 attendees and outdoor events with 10,000 attendees). The Updated Order tightens these requirements and expands them to indoor events with 1,000 or more attendees.

Next Steps

• Businesses should review the Updated Order and determine whether they are subject to any of the proof of vaccination requirements.
• Affected businesses should develop a plan to meet the requirements by the stated deadlines.
• Businesses should pay particular attention to recordkeeping requirements, as well as compliance with accommodation and privacy laws.
• All businesses should continue to monitor for updates to applicable COVID orders.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.