It could be a hectic start to 2022 for some Chicago and Cook County employers. On January 3, 2022, Mayor Lightfoot’s Public Health Order 2021-2 and the Cook County Department of Public Health’s Public Health Order 2021-11  took effect, mandating proof of full vaccination (two weeks after the second dose of the Pfizer or Moderna vaccine, or two weeks after a single dose of the Johnson & Johnson vaccine) for patrons age five and older before they can enjoy certain public establishments.

Though the Orders are largely patron-focused (and employees are likely not “patrons” under the Orders), businesses in Chicago and Cook County will also need to comply with the Orders’ requirements that employers ensure employees are fully vaccinated or produce weekly negative COVID-19 tests.

Here’s what Chicago and Cook County employers need to know now.

Which establishments are covered?

  • Establishments where food or beverages are served, including but not limited to restaurants, bars, fast food establishments, coffee shops, tasting rooms, cafeterias, food courts, dining areas of grocery stores, 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 in areas where food or beverages are served, including but not limited to movie theaters, music and concert venues, live performance venues, adult entertainment venues, commercial event and party venues, sports arenas, performing arts theaters, bowling alleys, arcades, card rooms, family entertainment centers, play areas, pool and billiard halls, and other recreational game centers

What if you own a restaurant that only provides carry out? You won’t need to check the vaccination status of every patron coming in to grab food and go. Individuals entering an establishment for less than 10 minutes for the purpose of ordering and carrying out food, making a delivery, or using the bathroom are exempted. In addition, there are other exemptions, including for individuals who have previously received a medical or religious exemption as long as they provide the establishment proof of the exemption and a COVID-19 test administered by a medical professional within the last 72 hours prior to entering the establishment.

Other establishments that aren’t covered: houses of worship, K-12 schools, locations in O’Hare International Airport or Midway International Airport, locations in residential or office buildings limiting use to residents, owners, or tenants of that building, and food service establishments providing only charitable food services (such as soup kitchens.)

In addition, businesses in Evanston, Skokie, Oak Park and Stickney Township are not covered by either Order (since they are not within Chicago’s jurisdiction, nor within the Cook County Department of Health’s jurisdiction since they each have their own health departments). However, Oak Park, Evanston, and Skokie all intend to fall in line with similar orders taking effect January 10. And Orland Park and Elk Grove Village will not enforce the Cook County mandate, but businesses in Orland Park and Elk Grove Village choosing not to follow the Cook County mandate will still be subject to enforcement and penalties imposed by Cook County authorities.

What do businesses have to do to comply with the patron vaccination requirement?

Require proof of full vaccination, and keep those without proof outside

Covered businesses cannot permit patrons to enter the indoor portion of the establishment unless the patron displays proof of full vaccination–a CDC COVID-19 Vaccination Record Card or an official immunization record from the jurisdiction, state, or country where the vaccine was administered, reflecting the person’s name, vaccine brand, and the dates administered (or a digital or physical photo of the same). Individuals over the age of 16 must also provide identification (such as a driver’s license, passport, government ID or work or school ID) bearing the same identifying information as the proof of full vaccination.

Proof can also be provided before the time of entry for the sake of efficiency, either directly to the covered entity or through an intermediary such as an event planner.

Covered businesses would be wise to require those individuals without proof (or applicable exemptions) to remain outside. Businesses who violate the Orders are subject to penalties such as arrest, fines, closure, and other penalties provided by law.

Develop and maintain a written record of the protocol, and keep it available for inspection

Covered businesses must develop a protocol for implementing and enforcing the requirements of the Orders, and keep the protocol in writing. Businesses must have the record available for inspection upon the request of any City of Chicago authorized official.

Post signage to inform patrons of the vaccination requirement

Covered businesses must also prominently post signage at each publicly accessible entrance to the covered location and at least one place inside the location that is conspicuously visible, informing patrons of the requirement that they be fully vaccinated.

Employers should also note that Chicago and Illinois both have indoor mask mandates in place, and the Cook County Order requires that any individual aged two and older who is able to medically tolerate a mask wear one when indoors in a public place, regardless of vaccination status (with exceptions for patrons when they are actively eating / drinking while stationary in an eating / drinking establishment, or other activities requiring mask removal such as beard shaves or facials).

Are employees required to show proof of vaccination?

Though employees are likely not “patrons” under the Orders, and therefore do not have to show proof of vaccination, the Orders require all businesses to comply with OSHA standards 1910.501(e) and (g), regardless of the number of employees. What this means: every covered Chicago and Cook County business, regardless of size, must determine the vaccination status of each employee and require COVID-19 testing for those who are not fully vaccinated.

Specifically,

  • OSHA standard 1910.501(e) requires every employer to determine the vaccination status of each employee, including whether the employee is fully vaccinated. Employers must require each vaccinated employee to provide acceptable proof of vaccination status, including whether the employee is fully or partially vaccinated. In addition, the employer must maintain a record of each employee’s vaccination status.
  • OSHA standard 1910.501(g) requires COVID-19 testing for employees who are not fully vaccinated. Specifically, employees who are not fully vaccinated and who report at least once every 7 days to a workplace where there are others present must be tested for COVID-19 at least once every 7 days and must provide documentation of the most recent COVID-19 test result to their employer no later than the 7th day following the date on which the employee last provided a test result.

How long will this be in effect?

Like many COVID orders, the Orders will remain in effect until a determination has been made that the threat to public health has diminished to the point that the Orders can be repealed.

Important: the OSHA ETS is also in play (for now), and covered employers must comply

The Sixth Circuit US Circuit Court of Appeals lifted the stay on the OSHA ETS on December 17. The US Supreme Court will hear oral argument on whether to block the ETS at a special January 7 session, but for now, the ETS stands, requiring employers with at least 100 employees to implement and enforce a policy that mandates employees to be fully vaccinated or to submit to weekly COVID-19 testing and mask-wearing.

OSHA has announced new compliance deadlines for the ETS: January 10 for all ETS requirements except testing (the original deadline was December 6) and February 9 to start testing unvaccinated employees (the original deadline was January 4).

Here is what is required by the new OSHA ETS deadlines:

1. Employers with 100 or more employees have until January 10, 2022 to:

  • develop, implement, and enforce a mandatory COVID-19 vaccination policy or instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace
  • determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status
  • provide employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each dose
  • (1) require employees to promptly provide notice when they receive a positive COVID 19 test or are diagnosed with COVID-19; (2) immediately remove any employee from the workplace who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider (regardless of vaccination status); and (3) keep removed employees out of the workplace until they meet criteria for returning to work
  • ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances, and refrain from preventing any employee (regardless of vaccination status) from voluntarily wearing a face covering unless it creates a serious workplace hazard (such as interfering with the safe operation of equipment)
  • provide employees (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS, (2) the CDC document “Key Things to Know About COVID-19 Vaccines”, (3) information about protections against retaliation and discrimination, and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation, in a language and literacy level they understand
  • report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of learning about the hospitalization
  • make available for examination and copying an employee’s COVID-19 vaccine documentation and any COVID-19 test results to that employee and to anyone having written authorized consent of that employee
  • make available to an employee, or an employee representative, the aggregate number of fully vaccinated employees at a workplace along with the total number of employees at that workplace

2. Employers with 100 or more employees have until February 9, 2022 to comply with the complete dosing / testing requirements of the ETS by:

  • ensuring that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer)
  • ensuring all employees (except those who are granted exemptions) who have not received the entire primary vaccination series by February 9 are tested weekly (in the same manner as employees who are not fully vaccinated)
    • Note that employees do not need to be “fully vaccinated” by February 9 – they just need to have received all primary doses of the vaccine by that date
    • Because the timing of doses for the three main vaccination series available in the US is different, employers and employees must keep in mind the following dates in order to complete a vaccination series by February 9:
      • For the Janssen (Johnson & Johnson) COVID-19 vaccine, the primary vaccination series takes 1 day to complete. Employees who receive the Janssen vaccine therefore have to get their one Janssen dose on or before February 9 to be exempt from the testing requirements
      • For the Pfizer-BioNTech COVID-19 vaccine, the primary vaccination series takes 21 days to complete.  Employees receiving the Pfizer-BioNTech series therefore have to begin their primary vaccination series (i.e., get their first dose) on or before January 19, 2022 and get their second dose 21 days later
      • For the Moderna COVID-19 vaccine, the primary vaccination series takes 28 days to complete. Employees receiving the Moderna series therefore have to begin their primary vaccination series  (i.e., get their first dose) on or before January 12, 2022 and get their second dose 28 days later

Though booster shots are not yet required by the ETS, Governor Kathy Hochul of New York has announced that she will introduce legislation to include booster shots in the definition of “fully vaccinated.”  Other jurisdictions are likely to quickly follow suit if New York changes its definition of fully vaccinated.

The OSHA ETS website states that to provide employers with sufficient time to comply, OSHA will not issue citations for noncompliance with any of the ETS’s requirements before January 10, and will not issue citations for noncompliance with the testing requirements before February 9 “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” Therefore, covered employers don’t need to panic, but should move quickly to comply with OSHA’s new deadlines.

Coming into compliance–with the Chicago and Cook County Orders and the OSHA ETS–will be no small task for Chicago and Cook County employers, especially with deadlines quickly approaching. For assistance navigating these and your other employment needs, contact your Baker McKenzie employment attorney.