By Ronald S. Gart and Christopher A. Sickles
Seyfarth Synopsis: Pursuant to the Mayor’s Order 2021-148 (the “Order”), beginning on January 15, 2022, the District of Columbia has required certain businesses to verify that all patrons aged 12 and over have received at least one dose of the COVID-19 vaccine. Beginning on February 15, 2022, all patrons must show proof that they have received at least two doses of the COVID-19 vaccine.
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Businesses subject to the Order are required to (i) display signage alerting patrons of the vaccination requirement (sample signage is available at vaxdc.dc.gov) and (ii) verify its patrons’ vaccination status before allowing entry. Patrons may furnish the following information to verify vaccination status: (i) a CDC issued vaccination card (or a photocopy or digital copy thereof); (ii) a record of immunization from a health care provider or public health authority; (iii) a report from a COVID-19 verification mobile application (e.g., VaxYes, Clear, Excelsior, MyIR); or (iv) a World Health Organization Vaccination Record. Per the Order, businesses do not need to retain a patron’s record of vaccine status or a record of the verification process.
Pursuant to the Order, the following types of businesses must adhere to the aforementioned requirements:
- Indoor food and drink establishments (such as restaurants, nightclubs, taverns, food halls/courts, breweries, wineries, and distillery tasting rooms, seated dining halls, restaurants, and cafes located in museums, libraries, hotels, and other public venues);
- Indoor cultural and entertainment establishments (such as concert/live entertainment venues, sporting venues, movie theaters, pool and billiard halls, bowling alleys, cigar and hookah bars, and adult entertainment venues);
- Indoor exercise and recreational facilities (such as gyms and fitness studios); and
- Indoor event and meeting establishments (such as hotel meeting rooms, banquet halls, conference center meeting facilities, event/banquet halls located in museums and libraries, convention centers, auditoriums, and shared work facilities when hosting events).
Establishments Excluded from the Order
There are several ambiguities with respect to the types of establishments that are subject to the Order. For example, non-public fitness centers can typically be 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 an effort to answer such questions and provide the public with further clarity on the vaccination entry requirement, DC Health has created and published the Guidance and a FAQ (the “FAQ”). According to the FAQ, gyms and fitness facilities operating for the sole use of individuals residing or working in that specific building are exempt from the vaccine entry mandate. The FAQ lists several other types of establishments which 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, farmer’s markets, and food establishments that provide charitable food services;
- Houses of worship;
- Hotels, except meeting rooms, ballrooms and hotel restaurants and bars;
- Homeless shelters and other human services facilities;
- Health care facilities and pharmacies;
- Private meeting spaces in office buildings or residential buildings;
- Gyms and Fitness Facilities operating for the sole use of individuals residing or working in that specific building; and
- Law enforcement buildings and government offices such as the Department of Motor Vehicles.
The Order is intended to cover venues and establishments where people typically gather, and the guiding principle for determining whether the mandate applies to a particular establishment is whether that establishment is open to the general public or whether outsiders who typically would not be present at the venue are invited in (e.g., an event held within 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 conducts a non-exempt activity, the vaccine requirement will apply. For example, if a house of worship is rented for a non-religious purpose, a museum hosts a gala, or a public library or a retail bookstore hosts an indoor event, proof of vaccination will be required for entrants.
Individuals Excluded from the Order
Expressly excluded from the mandate are individuals that only briefly enter an establishment (for example, to use the restroom or collect a carry-out order) and individuals who are either medically exempt or unable to receive the vaccine out of a sincerely held religious belief. Furthermore, the vaccine requirement does not apply to employees of covered establishments, just the patrons thereof.
Penalties for Non-Compliance
As set forth 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 that businesses are appropriately complying with the Order. Businesses that fail to make good faith efforts to comply will be subject to enforcement actions, including civil fines of not more than $1,000 and/or suspension or revocation of business licenses.
In accordance with the above, DC Alcoholic Beverage Regulation Administration recently released a citation schedule for violations of the Order by alcohol-licensed establishments (such as bars and restaurants), which are front and center in terms of establishments affected by the vaccine entry mandate. Consequences for violations of the Order for these establishments are as follows:
- First offense: Verbal Warning
- Second offense: Written Warning
- Third offense: $1,000 fine
- Fourth offense: $2,000 fine
- Fifth or Subsequent offense: Investigative Report submitted to DC liquor board and subsequent hearing (the board has the power to suspend or revoke licenses)
As of today’s date, one establishment has already been cited for not following the requirements set forth in the Order. A list of establishments that have been issued warnings or citations for failure to comply with the Order will be published by DC Alcoholic Beverage Regulation Administration every Tuesday on an ongoing basis.