The City of Los Angeles will likely implement a vaccine mandate next week for anyone wishing to visit certain public venues. This is on the heals of California’s mandate that teachers and school staff must be vaccinated or be tested at least once per week, and certain health care workers to be vaccinated by September 30, 2021. The City of Los Angeles’ mandate raises many issues and questions for employers, should it pass as expected. Here are five key issues facing businesses under an ordinance that requires customers to be vaccinated:
Today I introduced legislation with @MitchOFarrell to require proof of COVID vaccination to enter indoor public spaces throughout the City of LA.
So many Angelenos stepped up and did their part. They shouldn't be penalized with closures by those unwilling to do theirs. pic.twitter.com/ebj0phJ5wZ
— Nury Martinez (@CD6Nury) August 4, 2021
1. What is required by the City of Los Angeles’ vaccine mandate?
The Los Angeles City Council voted 13-0 on Wednesday, August 11, to instruct the City Attorney “to prepare an present an ordinance that would 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.” While the motion sets forth some establishments that will be covered, the key issue is what are the other establishments covered by the “but not limited to” clause in the motion?
Also, the ordinance does not require the public to be vaccinated but prevents them from being able to visit or shop at these public facilities. However, it would likely require the employees at these facilities to be vaccinated, as discussed below.
2. Who will enforce the ordinance?
It is one thing for employers to ask employees about vaccination status and document their status, but quite another issue to place this burden on businesses to check the vaccination status of the public who wish to enter their facility.
3. How will companies verify if an individual has a medical condition or a sincerely held religious belief that prevents them from getting the vaccine?
Again, in the employment context, it is easy to work with employees to see who needs a reasonable accommodation due to medical issues or based on sincerely held religious beliefs as required under the law. However, it is likely that companies will have to offer similar accommodations to the public based on their medical condition and sincerely held religious beliefs in order to enter their facility. How are businesses to verify that the customer is entitled to a reasonable accommodation? Is the customer’s verbal statement that they need a reasonable accommodation sufficient? There are many privacy issues at play here as well.
4. Will employees who work in the facilities covered by the ordinance be required to be vaccinated?
It seems that employees working in facilities that are covered by the ordinance will need to be vaccinated and that excluding the employees from this requirement would defeat the intent. However, except for teachers, school staff, and certain health care workers, there has not been a state or local mandate in California requiring employees to receive the vaccine. This ordinance, to the extent it applies to employees, would be the first-time employees are required to be vaccinated outside of the school, government, or healthcare setting. See our prior post Checklist for Developing a Mandatory Vaccination Policy in California for more information about employers’ obligations when developing a mandatory vaccination policy.
5. By requiring mandatory vaccines, does this guarantee that the facilities covered by the ordinance will remain open, even if there is a surge in Delta-variant cases?
The statements made by the Councilmembers in support of the ordinance do support the idea that if the mandate is in place it will avoid another shutdown. For example, Variety reported that Councilmember Kevin de Leon stated, “This is a no-brainer. My constitutes can’t accept another shutdown.” Also, politically, it would be difficult for Councilmembers to support the mandatory vaccination, require their constitutes to be vaccinated, and then support another economic shutdown in the future. It would be an incentive for businesses to support such measures if they knew with reasonable certainty that it would prevent the City from imposing further shutdowns. Likewise, it would be an incentive for individuals to receive the vaccine if they knew the public establishments which they are receiving the vaccine in order to enter will in fact remain open, even if the Delta-variant becomes more widespread.