On September 1, 2021, the City of Berkeley issued an order mandating that certain Berkeley businesses and operations verify proof of full vaccination of their employees and patrons (the Order) in response to the surging number of COVID-19 Delta variant cases.
Who does this apply to?
The Order applies to any business, government, non-profit, person, or entity (Covered Business or Covered Businesses) engaged in the following: (1) establishments or events where food or drink is served indoors (e.g., dining establishments, bars, clubs, theaters, and entertainment venues), (2) gyms, recreation facilities, yoga studios, dance studios, and other fitness establishments, where patrons engage in cardiovascular, aerobic, strength training, or other exercise involving elevated breathing, (3) indoor events of 1,000+ people, including school facilities, (4) adult care facilities, (5) adult day programs, (6) dental offices, (7) pharmacies, (8) home health care workers and entities employing home healthcare workers, and (9) all public and private childcare facilities. Covered Businesses engaged in the first three services above must verify that patrons 12 years of age and older are fully vaccinated prior to entering their establishment starting September 10, 2021, and all Covered Businesses must verify that employees are fully vaccinated by October 15, 2021, with limited exceptions and subject to applicable federal, state, or local laws requiring accommodations.
What are the limited exceptions?
Masked patrons, as well as masked delivery workers who are not employed by a Covered Business, entering a Covered Business's establishment solely to perform a brief transaction (e.g., picking up or delivering food) are exempt from the Order. Religious facilities that provide food or drink solely and briefly as part of a religious ceremony (e.g., communion or kiddush) are also exempt from the Order. Operators or hosts of large indoor events of 1,000+ people may accept a negative COVID-19 test result taken within the past 72 hours in lieu of proof of full vaccination until October 14, 2021.
What is an acceptable proof of full vaccination?
For an individual to be fully vaccinated, at least two weeks must have elapsed since the individual received a final dose of a COVID-19 vaccine authorized by the Food and Drug Administration (FDA) or the World Health Organization. The Order accepts five proofs of full vaccination:
- A physical or electronic photo or copy of a vaccination card issued by the Center for Disease Control (CDC) or a foreign government stating (a) the individual's name, (b) the type of vaccine received, and (c) the date or dates when the vaccine dose or doses were administered;
- A digital record with a QR code that, when scanned by a SMART Health Card reader, will display (a) the individual's name, (b) the individual's date of birth, (c) the type of vaccine received, and (d) the date or dates when the vaccine dose or doses were administered;
- Documentation of vaccination from a healthcare provider; or
- A digital COVID-19 vaccine record issued by the State of California (https://myvaccinerecord.cdph.ca.gov/) or similar documentation issued by another state, local, or foreign governmental jurisdiction.
What is an acceptable proof of a negative COVID-19 test?
An acceptable proof of a negative COVID-19 test must state the employee's name, the type of test performed, a negative test result, and the date the test was administered. Employees of Covered Businesses may be subject to more restrictive requirements by Cal/OSHA.
Do Covered Businesses need to check each patron's photo identification in addition to proof of full vaccination?
Yes. Covered Businesses must cross-check the proof of vaccination with each patron's photo identification unless photo identification is integrated into the proof of vaccination.
Do Covered Businesses need to keep a record of their employees' proof of COVID-19 vaccination?
Yes. Covered Businesses should keep records of their employees' proof of full vaccination because they must provide such records to the City of Berkeley's Health Officer or other public health authorities by the next business day after receiving a request for such records.
What if a Covered Business's employee claims exemption from COVID-19 vaccination?
If an employee claims exemption under federal law for a qualifying medical reason or sincerely held religious belief, the employee must provide a declination letter signed under the penalty of perjury and provide proof of a negative COVID-19 test, specifically a nucleic acid (including polymerase chain reaction) or antigen test, at least once per week. The declination letter must state that either (1) the individual is declining vaccination based on a sincerely held religious belief, practice, or observance, or (2) the individual is excused from receiving any COVID-19 vaccine due to a medical condition or disability recognized by the FDA or CDC as a contra-indication to COVID-19 vaccination, in which case a licensed medical provider must also sign the letter.
The Order supplements the City of Berkeley's August 2, 2021 Order for the Wearing of Face Coverings in Indoor Settings and does not limit or modify that order. Violation of or failure to comply with the Order is a misdemeanor punishable by fine, imprisonment, or both. Businesses and individuals with questions should contact experienced counsel for guidance on new policies and practices.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.