Seyfarth Synopsis: On October 13, 2021, the San Francisco Department of Public Health issued a revised COVID-19 health ordinance. Of interest to many employers, the city has set out when certain companies – such as office workplaces – can allow fully vaccinated individuals not to wear face-covering indoors. She also outlined the vaccination guidelines, according to which the city will abolish the requirements for universal indoor face coverage altogether.
Like Tony Bennett, who sang his heart out about San Francisco, the city’s mayor had great news. After the mayor made changes last week, the SFDPH finally enacted a revised public health ordinance with two major changes to the city’s rules on indoor face covering. A redline of changes to the order can be found here and updated FAQs about the order can be found here.
It calls for me high up on a hill – the requirements for face covering indoors are relaxed
With effect from October 15, 2021, the ordinance relaxes the requirements for indoor face covering for fully vaccinated stable cohorts in offices, work vehicles, indoor fitness shops, adult lectures and classes (but not in high schools or grammar schools) and religious gatherings. Personnel in these rooms can remove their face covering indoors if the company complies with the city’s strict vaccination regulations.
The requirements for removing indoor face coverings vary slightly depending on the type of company. For example, to benefit from the new rules in offices, employers must ensure that:
- All persons entering the facility provide evidence that they are fully vaccinated;
- No person is unvaccinated because of a disability / religious exemption;
- The only people in the office are “staff” of the company. “Personnel” is defined as employees, contractors and subcontractors, independent contractors, vendors allowed to sell goods locally, volunteers and others who regularly provide on-site services at the Company’s request. When a visitor is present, everyone in the office space must wear face-covering except as noted below;
- The company controls access to the office space to ensure that anyone entering is fully vaccinated. People who occasionally / occasionally enter the practice (e.g. delivery staff) do not have to present a vaccination card, but must wear a face covering;
- There are no children under the age of 12 present;
- The company has implemented at least one of the following ventilation strategies: (1) all available windows and doors that are accessible to fresh outside air are opened for as long as the air quality and weather conditions permit; (2) fully functional HVAC system; or (3) appropriately sized portable air purifiers in each room; and
- The employer has not seen a COVID-19 outbreak (three or more cases in a rolling 14 day period) in the last 30 days.
Over the blue and windy sea, uncontrolled settings still require masks
A workplace with unvaccinated employees. If offices do not have fully vaccinated staff on site, the layout allows the offices to provide special work areas where fully vaccinated staff can remove their masks. The FAQs make it clear that these “fully inoculated” areas must be separated from one another by doors, walls or a gap. Employers must also control access to the rooms to keep anyone out who is not fully vaccinated. And all people must wear a mask when in indoor common areas such as hallways, lobbies and elevators where such access cannot be controlled.
Further restrictions for non-office businesses. The order makes slightly different demands on other types of businesses. For example, indoor classes and “other similar gatherings” may, in addition to the above cases, drop their indoor face covering requirements only if the gathering does not exceed 100 people and the class is a “stable group of people”, who meet regularly (e.g. no drop-ins for sports classes).
Your golden sun will shine for me with an acceptable vaccination certificate
The order does not change how companies can check vaccination status. The following are also accepted as proof of vaccination: (i) the CDC vaccination card, (ii) a photo of a vaccination card as a separate document, (iii) a photo of the vaccination card stored on a telephone or electronic device, (iv) vaccination documentation from a healthcare provider, (v ) written self-certification of vaccination signed under penalty of perjury; or (vi) a personal digital digital COVID-19 vaccination record from the state of California or similar documentation issued by another government jurisdiction or licensed private company.
The City by the Bay presents some practical challenges
Implementation. Implementing this ordinance can pose challenges for employers where small cable cars rise halfway to the stars. First, the order does not include flexibility for placement. If an on-site employee remains unvaccinated due to a religious exception or medical precaution, face-covering must be worn throughout the office unless the employer separates all unvaccinated individuals in a separate part of the office.
Metrics for overriding other face coverage rules. Second, and perhaps of more permanent concern, the city also released the metrics of when their broader order of indoor face coverings will be lifted. The city will issue a new health ordinance if:
- The number of cases in the city has been at or below the CDC level of yellow transmission for at least three weeks (i.e., fewer than 50 cases per 100,000 residents in the last seven days and less than 8% of positive tests in the last seven days). );
- The total number of patients admitted to the city due to COVID-19 is no more than 65; and
- Either 80% of the total city population (including children of all ages) have received their last dose of vaccine; or 8 weeks after the FDA issues emergency approval of a COVID-19 vaccine for children ages 5-11.
Alameda, Contra Costa, Marin, Napa, San Mateo, Santa Clara, Sonoma counties, and the city of Berkeley have reportedly agreed to follow a similar framework. And in addition to San Francisco, Contra Costa will also allow fully vaccinated groups to forego masking on November 1, 2021.
For many businesses with employees clamoring to take off their face coverings indoors, the recent San Francisco Health Ordinance could raise more questions than answers. We are here to help you address these challenges and answer your other questions related to COVID-19.
And keep an eye out for additional warnings. If the past 18 months have taught us anything, it is that public health orders can change rapidly as the COVID-19 pandemic evolves.