On Thursday, August 12, the City and County of San Francisco Department of Public Health made headlines by amending its existing Health Order (C19-07) to add requirements for proof of full vaccination. Specifically, these new requirements apply to operators of businesses and events that serve food or drink indoors, such as dining establishments, bars, clubs, theaters and entertainment venues. Additionally, gyms, recreation facilities, yoga studios, and other fitness establishments will also be required to check proof of full vaccination. This applies both to patrons 12 years and older and staff. The verification generally is required before these individuals enter the business’s indoor facilities.
The patron verification must be in place no later than August 20th. Per the revised Order, businesses subject to the new vaccination verification requirement must use their best efforts to ascertain the vaccination status of all staff who routinely work onsite by August 20, 2021. Also, as soon as possible, but not later than October 13, 2021, businesses must ensure that all staff who routinely work onsite provide proof that they are fully vaccinated before entering or working in any indoor portion of the facility.
It is expected that the City of Los Angeles will follow suit shortly. On August 11, the Los Angeles City Council, by a 13-0 vote with two absent, requested the City Attorney to draft an ordinance to require eligible individuals to have received at least one dose of vaccination to enter indoor spaces, including but not limited to, restaurants, bars, retail establishments, fitness centers, spas, and entertainment centers such as stadiums, concert venues, and movie theaters. The San Francisco Order and the impending Los Angeles Ordinance will likely not be the same, if for no other reason than the level of vaccination which must be verified.
These two new responses to the pandemic come closely on the heels of additional orders, both by the California Department of Public Health (CDPH) and multiple local jurisdictions. On August 5th, the CDPH issued two public health orders. The first require workers in health care settings to be fully vaccinated or receive their second dose by September 30, 2021. The second directs hospitals, skilled nursing facilities, and intermediate care facilities to verify that visitors are fully vaccinated or have tested negative for COVID-19 in the prior 72 hours before indoor visits.
On August 11th, CDPH issued another order to require verification of vaccination status among eligible K-12 school workers, and establishes diagnostic screening testing of unvaccinated workers to minimize the risk that they will transmit while on K-12 school campuses
In the Bay Area, Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and Sonoma Counties, and the City of Berkeley, issued Health Orders requiring all individuals, regardless of vaccination status, to wear face coverings when indoors in public settings, with limited exceptions.These Orders started at 12:01 a.m. on Tuesday, August 3rd.
In addition, Los Angeles, Sacramento, and Yolo Counties and the City of Pasadena have previous adopted indoor mask requirements for everyone, including vaccinated people.
As noted by Santa Clara County, “Where a conflict exists between this Order and any order issued by the State Public Health Officer, the Governor, or a State agency (such as the California Division of Occupational Safety and Health (Cal/OSHA)) related to the COVID-19 pandemic, the most restrictive provision controls.”
These new requirements, and likely more to follow, will affect the obligation of employers to maintain a safe workplace even if not specifically set forth in the now at least partially outdated Cal/OSHA COVID-19 Prevention Emergency Temporary Standard (ETS). They do not affect the continuing reporting obligations under Senate Bill 1159 (Hill) relating to establishing a presumption of compensability that a COVID-19 case arose out of and in the course of employment.
When deciding, as more employers are doing, to mandate vaccination of the workforce, it will be incumbent upon the employer to recognize that, at least at the moment, there is no one-size-fits-all policy. What may be the “most restrictive” provisions today may not be two weeks from now.
Note: The opinions expressed herein may or may not be those of Workers’ Comp Executive. Mark Webb is a former Arizona insurance regulator, insurance company chief compliance officer, and is an expert in corporate governance, risk and compliance. He is the owner of Prop 23 Advisors.