On October 6, 2021, Los Angeles Mayor Eric Garcetti signed into law one of the strictest vaccine mandates in the country (Ordinance No. 187219, the “Ordinance”), requiring proof of COVID-19 vaccination for patrons to enter a wide range of private establishments–more than just bars, wineries, or breweries. Employers who are covered by the Ordinance–which is similar to ordinances in New York, West Hollywood, and San Francisco–will have to quickly determine what changes they’ll need to make in order to meet the Ordinance’s requirements less than a month from now.

Here’s what businesses need to know now about the Ordinance.

Where does this matter?

The Ordinance applies to businesses operating within the city limits of Los Angeles, but not those in unincorporated areas of L.A. County.  North Hollywood?  Yes!  Santa Monica? No!

What’s the timeline?

If the Ordinance applies (see below for further details on whether your establishment is a “covered location” or “outdoor large event”), covered establishments must start verifying each patron’s proof of vaccination (and for outdoor large events or certain exempted patrons of covered locations, proof of a negative COVID-19 test) as of November 4, 2021.

Covered locations must also give advance notice of the vaccination requirement.  Starting October 21, 2021, each covered location must post or display an advisory notice informing patrons that, beginning on November 4, proof of vaccination is required to enter any “indoor portion” of the covered location. This notice must be prominently displayed and visible to patrons prior to entrance.

Important caveat!  While the Ordinance on its face requires businesses to comply by October 21 (for posting purposes) and November 4 (for proof of vaccination), it is not clear whether either of those deadlines have significance because the Ordinance itself does not take effect until November 8, 2021. The Ordinance did not receive sufficient votes to constitute an emergency declaration that would take effect immediately. Accordingly, the LA Charter and Administrative Code requires that the Ordinance be published in a local newspaper 30 days before its effective date. The Ordinance was signed by Mayor Garcetti on October 6 and states that it will be published on October 8 and will take effect November 8, 2021.  It is not clear how businesses could be required to comply with any aspect of the Ordinance before it takes effect.

Citations will be issued starting November 29, 2021 for covered establishments that aren’t in compliance–starting with a warning and notice to correct for a first violation, an administrative fine of $1,000 for a second violation, $2,000 for a third, and $5,000 for a fourth and each subsequent violation.

The Ordinance will sunset upon the lifting of the COVID-19 Declaration of Emergency declared by Mayor Garcetti (which has now been in effect since March 4, 2020).

Who must comply?

The Ordinance applies to “covered locations” and “outdoor large events,” both explained in more detail below. (The Ordinance also applies to “city facilities”–the indoor portion of any building, structure, or premises belonging to or under the control of the City.) The Ordinance covers more types of businesses than does the September 17, 2021 Los Angeles County Health Officer Order, which requires customers and employees in the indoor portions of bars, wineries, breweries, distilleries, nightclubs and lounges to show proof of full vaccination by November 4–and attendees of “mega events” (events with large crowds, including indoor events with greater than 1,000 attendees and outdoor events with greater than 10,000 attendees) to show proof of vaccination or a negative COVID-19 test.

What is required?

The new Ordinance states:

  • Covered locations must require patrons (individuals eligible to receive a COVID-19 vaccine who enter, patronize, attend an event, or purchase goods or services at a covered location or outdoor large event) to provide proof of vaccination
    1. when they enter an “indoor portion” of a covered location and
    2. upon the patron’s first in-person interaction with staff.

Individuals are “eligible to receive a COVID-19 vaccine” if a COVID-19 vaccine is authorized for their use by the US Food and Drug Administration (FDA) (which includes individuals age 12 and older in the US, and includes vaccines that have received Emergency Use Authorization (EUA)), or, in the case of a foreign visitor or traveler, individuals who are eligible for vaccines authorized by the World Health Organization (WHO).

If a patron appears to be 18 years or older, the covered location must cross-check the proof of vaccination against a photo ID. In addition, covered locations must develop and keep a written record describing the protocol for implementing and enforcing the requirements of the Ordinance.

  • Operators of outdoor large events that are ticketed or held in defined spaces with controlled points of entry must verify proof of vaccination or proof of a negative COVID-19 test of patrons prior to entry to the event. As with covered locations, if a patron appears to be 18 years or older, the event must cross-check the proof of vaccination or proof of negative COVID-19 against a photo ID.

What are “covered locations”? And what are “indoor portions”?

“Covered locations” include certain establishments in the City of Los Angeles, but they must have an “indoor portion”–a part of the location with a roof or overhang enclosed by at least three walls, excluding a structure on the sidewalk or roadway if it is entirely open on the side facing the sidewalk, and excluding an outdoor dining structure for individual parties (such as a plastic dome) that has adequate ventilation to allow for air circulation. The following establishments–with indoor portions–are covered by the Ordinance:

  • Establishments where food or beverages are served, including, but not limited to, restaurants, bars, fast food establishments, coffee shops, tasting rooms, cafeterias, food courts, breweries, wineries, distilleries, banquet halls, and hotel ballrooms;
  • Gyms and fitness venues, including, but not limited to: gyms, recreation facilities, fitness centers, yoga, pilates, cycling, barre, and dance studios, hotel gyms, boxing and kickboxing gyms, fitness boot camps, and other facilities used for conducting indoor group fitness classes;
  • Entertainment and recreation venues, including, but not limited to, movie theaters, music and concert venues, live performance venues, adult entertainment venues, commercial event and party venues, sports arenas, convention centers, exhibition halls, museums, malls, shopping centers, performing arts theaters, bowling alleys, arcades, card rooms, family entertainment centers, play areas, pool and billiard halls, and other recreational game centers; and
  • Personal care establishments, including spas, nail salons, hair salons, barbershops, tanning salons, estheticians, skin care and cosmetology services, body art professionals, piercing shops, and massage therapy, except as medically required.

These establishments can issue more stringent requirements than those set forth in the Ordinance, but must at least meet the requirements of the Ordinance. In addition, the Ordinance does not preclude locations that are not on the list from issuing vaccination requirements.

An amendment to the Ordinance calls for the City’s Chief Legislative Analyst to report on the possibility of allowing malls to post signage at all entrances stating that a vaccination is required for entry and that failure to comply may be grounds to deny entry, presumably as an alternative to having to check patrons individually.

There is another important but somewhat hidden exception! Covered locations that are already required by a County of Los Angeles Department of Public Health (DPH) Order to check proof of vaccination status before providing indoor service are not subject to the Ordinance. Therefore, those indoor portions of establishments that are already required to obtain proof of vaccination by the Los Angeles County September 17, 2021 Order–including the indoor portions of bars, wineries, breweries, distilleries, nightclubs and lounges, and indoor “mega events”–aren’t covered by the new City Ordinance.

What are outdoor large events?

An “outdoor large event” is an event with between 5,000 and 9,999 attendees, including conventions, conferences, expos, concerts, shows, nightclubs, sporting events, live events and entertainment, fairs, festivals, parades, theme parks, amusement parks, water parks, marathons or endurance races, car shows–and large private events or gatherings. Outdoor large events may have either assigned or unassigned seating, and may be either general admission or gated, ticketed, and permitted events.

What is “proof” of vaccination and a negative COVID-19 test?

Proof of vaccination must demonstrate proof of full vaccination–meaning 14 or more days after completing the entire recommended series of vaccination with a COVID-19 vaccine, which includes vaccines authorized by the FDA or the WHO. The Ordinance clarifies that for the Pfizer and Moderna vaccine, full vaccination currently means two weeks after receiving the second dose, or two weeks after receiving the single dose of the Johnson & Johnson vaccine–meaning boosters are not currently required. Acceptable proof of vaccination includes:

  • A COVID-19 vaccination card issued by Centers for Disease Control and Prevention (CDC) (including the name of the person vaccinated, type of vaccine provided, and date last dose was administered) or similar documentation issued by another foreign governmental agency;
  • A photo of a vaccination card (both sides), as a separate physical photograph or stored on a phone or electronic device;
  • Documentation of vaccination from a licensed healthcare provider; or
  • A personal digital COVID-19 vaccine record issued by the State of California or similar documentation issued by another state, local, or foreign governmental jurisdiction, or by a private company.

Proof of a negative COVID-19 test means

  • a printed document, email or text message displayed on a phone
  • from a test provider or laboratory
  • that shows results of a polymerase chain reaction (PCR) or antigen COVID-19 test that either has EUA by the FDA or is operating per the Laboratory Developed Test requirements by the US Centers for Medicare and Medicaid Services
  • that was conducted within 72 hours before entry into a covered location or outdoor large event (or city facility).
  • The printed document, email, or text message must include the person’s name, type of test performed, date of the test, and negative test result.

Are there any exceptions to the Ordinance?

Yes.

  • Patrons can enter the indoor portion of a covered location without proof of vaccination if they self-attest that they are exempt because of a medical condition or sincerely-held religious belief, but the patron can then only use the portion of the covered location that is not an indoor portion–unless such use is not available, in which case the patron can use the indoor portion if they provide proof of a negative COVID-19 test and a photo ID.
  • Patrons who are not vaccinated and don’t qualify for an exemption must use the non-indoor portion of the covered location, but can still enter the indoor portion for brief and limited periods of time (such as to use the restroom, to pick up and pay for “to go” orders, or to perform necessary repairs). They must be masked at all times in the indoor portion.
  • The Ordinance does not apply to non-resident performers (non-resident performing artist, nonresident professional athletes or sports teams, or non-resident individuals accompanying a performing artist or sports team as part of their regular employment) who enter a covered location or outdoor large event for purposes of performing or competing.

What should establishments that are “covered locations” and “outdoor large events” do now?

Establishments that are covered locations or outdoor large events have little time to prepare, and should move quickly to plan how to meet the Ordinance’s requirements.

  • Not only are covered locations required to post an advisory notice beginning October 21, 2021, but they must develop and maintain a protocol for implementing and enforcing the requirements of the Ordinance.
  • Though outdoor large events are not required to develop and keep a protocol, they should have one in place to ensure compliance with the Ordinance as well as smooth implementation of any necessary modifications for compliance.
  • It is not clear if the definition of “patron” – which is defined in the Ordinance to mean an individual eligible to receive a COVID-19 vaccine who enters, patronizes, attends an event, or purchases goods or services at a covered location or outdoor large event–also includes employees working at covered locations or outdoor large events. On the one hand, wait staff working at a banquet hall event will have to “enter” the covered location to work. On the other hand, employees are typically not considered patrons. If employers in Los Angeles City with establishments that are covered locations or outdoor large events aren’t already requiring their employees to be vaccinated, they should consider implementing a mandatory vaccination policy for employees (and make sure they are vaccinated by November 4–which may not be feasible for the two-dose regimens).
  • If employees aren’t already checking COVID-19 vaccination or negative test status at the door, or cross-checking those things with the patron’s ID cards, additional training may be required to ensure they are conducting a compliant review. Also, employers should ensure employees know how to handle implementing exceptions to the Ordinance, and how to walk the sometimes fine line of enforcing the Ordinance’s requirements while keeping patrons happy and wishing to return.

For assistance navigating this new Ordinance and your other employment needs, contact your Baker McKenzie employment attorney.