Synopsis of Seyfarth: Pursuant to Mayor’s Order 2021-148 (the “Ordinance”), effective January 15, 2022, the District of Columbia required certain businesses to verify that all customers age 12 and older have received at least a dose of COVID-19 vaccine. As of February 15, 2022, all customers must present proof that they have received at least two doses of the COVID-19 vaccine.
Businesses subject to the order are required to (i) post signs warning customers of the vaccination requirement (a sample sign is available at vaxdc.dc.gov) and (ii) verify the vaccination status of their customers before allowing entry. Customers may provide the following information to verify vaccination status: (i) a CDC-issued vaccination card (or a photocopy or digital copy thereof); (ii) an immunization record from a health care provider or public health authority; (iii) a report from a COVID-19 verification mobile app (e.g., VaxYes, Clear, Excelsior, MyIR); or (iv) a vaccination certificate from the World Health Organization. According to the ordinance, companies make not should keep the client’s record of immunization status or a record of the verification process.
According to the Ordinance, the following types of businesses must comply with the above requirements:
- Indoor catering establishments (such as restaurants, nightclubs, taverns, dining halls/courts, breweries, wineries and distillery tasting rooms, sit-down dining rooms, restaurants and cafes located in museums, libraries, hotels and other public places );
- Indoor cultural and entertainment establishments (such as concert/live entertainment venues, sports halls, cinemas, pool and billiard halls, bowling alleys, cigar and hookah bars and adult entertainment venues);
- Indoor exercise and recreation facilities (such as gymnasiums and fitness studios); and
- Indoor event and meeting facilities (such as hotel meeting rooms, banquet halls, conference center meeting rooms, event/banquet halls located in museums and libraries, convention centers, auditoriums and shared work facilities when organizing events).
Establishments excluded from the decree
There are several ambiguities as to the types of establishments subject to the Decree. For example, non-public fitness centers are usually found in hotels, office buildings, and apartments. As such, are these uses – which could be considered gyms or fitness studios – subject to the vaccine entry mandate? In order to answer these questions and provide the public with more clarity on the vaccination entry requirement, DC Health has created and published the Tips and FAQs (the “FAQs”). According to the FAQ, gyms and fitness facilities operated for the exclusive use of those residing or working in that specific building are exempt from the vaccine entry mandate. The FAQ lists several other types of establishments that are deemed to be exempt from the vaccine verification requirement (many of which are explicitly included in the order), including the following:
- Retail establishments;
- Grocery stores, farmers markets and food establishments that provide charity food services;
- places of worship ;
- Hotels, excluding meeting rooms, ballrooms and hotel restaurants and bars;
- Homeless shelters and other social service facilities;
- Health facilities and pharmacies;
- Private meeting spaces in office buildings or residential buildings;
- Gymnasiums and fitness facilities operated for the exclusive use of persons residing or working in that specific building; and
- Law enforcement buildings and government offices such as the Department of Motor Vehicles.
The ordinance is intended to cover places and establishments where people generally congregate, and the guiding principle in determining whether the mandate applies to a particular establishment is whether that establishment is open to the general public or if outsiders who would not usually be present at the venue are invited (for example, an event held in a company’s conference space that is open to outside registrants).
It is important to note that if an establishment that is otherwise exempt from the vaccine entry mandate is conducting a non-exempt activity, the vaccine requirement will apply. For example, if a place of worship is rented for non-religious purposes, if a museum is hosting a gala, or if a public library or retail bookstore is holding an indoor event, proof of vaccination will be required from attendees.
Persons excluded from the Order
Persons who do not briefly entering a facility (for example, to use the restroom or pick up a take-out order) and people who are either medically exempt or unable to receive the vaccine due to sincere religious belief. In addition, the vaccination obligation does not apply to employees of covered establishments, but only to their customers.
Penalties for non-compliance
As noted in the FAQ, relevant district agencies, such as DC Health, DC Alcoholic Beverage Regulation Administration, and DC Department of Consumer and Regulatory Affairs, will conduct spot checks to ensure businesses are appropriately complying with the order. Companies that do not make good faith efforts to comply will be subject to enforcement action, including civil penalties not to exceed $1,000 and/or suspension or revocation of business licenses.
Consistent with the above, the DC Alcoholic Beverage Regulation Administration recently released a citation schedule for violations of the ordinance by liquor-licensed establishments (such as bars and restaurants), which are prominent in terms of establishments concerned by the vaccine entry mandate. The consequences of violations of the decree for these establishments are as follows:
- First offence: verbal warning
- Second offence: written warning
- Third offence: $1,000 fine
- Fourth offence: $2,000 fine
- Fifth or subsequent violation: investigation report submitted to DC liquor board and subsequent hearing (board has authority to suspend or revoke licenses)
As of today, one establishment has already been cited for non-compliance with the requirements set out in the order. A list of establishments that have received warnings or citations for non-compliance with the order will be released by the DC Alcoholic Beverage Regulation Administration every Tuesday on a rolling basis.