By Conn Maciel Carey LLP’s COVID-19 Task Force

As COVID-19 cases continue to rise throughout the state of Illinois, operators of indoor dining establishments, gyms, and entertainment venues where food and drinks are being served in the City of Chicago face a series of new requirements that necessitate quick action. Beginning January 3, 2022, Public Health Order 2021-2 will require all individuals over the age of 5, show proof of full vaccination to dine indoors, workout, and patronize entertainment venues. For purposes of the Public Health Order, fully vaccinated is the more restrictive of either the Centers for Disease Control and Prevention (CDC) guidance or Chicago Department of Public Health (CDPH) posted guidelines. For the time being, both the CDC and CDPH guidelines are aligned, defining fully vaccinated as two weeks after receiving the second dose in a two dose vaccination series and one week after receiving a single dose in a single dose vaccination series.  It remains to be seen if, or when, the recommended-but-not-required boosters will be added to that definition.

Employers, of course, must quickly figure out how to implement measures to comply with this Order—both with respect to customers/guests as well as with employees given that the Order does not have a minimum employee threshold like the Fed OSHA ETS.  This means that even small, independently owned restaurants and bars will be expected to comply even if they were not covered by the ETS which kicked in only at 100 employees.

Who is covered?

Public Health Order 2021-2 applies to the following venues:

1. Establishments where food or beverages are served, including but not limited to restaurants, bars, fast food establishments, coffee shops, tasting rooms, cafeterias, food courts, dining areas of grocery stores, breweries, wineries, distilleries, banquet halls, and hotel ballrooms.

2. Gyms and fitness venues, including but not limited to gyms, recreation facilities, fitness centers, yoga, pilates, cycling, barre, and dance studios, hotel gyms, boxing and kickboxing gyms, fitness boot camps, and other facilities used for conducting indoor group fitness classes.

3. Entertainment and recreation venues in areas where food or beverages are served, including but not limited to movie theaters, music and concert venues, live performance venues, adult entertainment venues, commercial event and party venues, sports arenas, performing arts theaters, bowling alleys, arcades, card rooms, family entertainment centers, play areas, pool and billiard halls, and other recreational game centers.

4. “Covered locations” do not include houses of worship, K-12 schools, locations in O’Hare International Airport or Midway International Airport, locations in residential or office buildings the use of which is limited to residents, owners, or tenants of that building, or to food service establishments providing only charitable food services, such as soup kitchens.

What does the rule require?

The core requirements of the Public Health Order are:

1. Comply with OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) proof of vaccination or testing requirement for all employees. All covered entities shall comply with OSHA (Occupational Safety and Health Administration) standards 1910.501(e) & (g) relating to employee vaccination status and testing, regardless of the number of their employees. As previously outlined by Conn Maciel Carey’s COVID-19 Taskforce sections (e) and (g) of the ETS requires employers to confirm that employees have completed their primary vaccination series or provide proof of a negative COVID-19 test at least once every seven days. Employers with 100 or more employees must comply with all provisions of the ETS.

2. Require proof of vaccination for all individuals over the age of 5 in a covered location. A covered entity shall not permit any patron to enter the indoor portion of a covered location without displaying proof of full vaccination. Acceptable forms of proof include: a CDC COVID-19 Vaccination Record Card; an official immunization record from the jurisdiction, state, or country where the vaccine was administered; or a digital or physical photo of such a card or record, reflecting the person’s name, vaccine brand, and dates administered. Any individual over the age of 16 must provide identification bearing the same identifying information as the proof of full vaccination. Acceptable forms of identification are official documents that bear the name of the individual and a photograph for example: driver’s licenses, non-driver government ID cards, passports, and school ID cards.

3. Develop a written COVID-19 plan. Each covered entity shall develop and keep a written record describing the protocol for implementing and enforcing the requirements of this Order.

4. Post signage informing all patrons of the vaccination requirement. All covered entities shall prominently post signage at each publicly accessible entrance to the covered location and at least one location inside the covered location that is conspicuously visible, informing patrons of the full vaccination requirement.

Exceptions.

Covered entities do not have to confirm proof of vaccination for patrons in the following instances:

1. Short stays. Individuals entering a covered location for less than 10 minutes for the purpose of ordering and carrying out food, making a delivery, or using the bathroom.

2. Guest performing artists. A non-Chicago-resident performing artist who does not regularly perform or render services in a covered location, or a non-Chicago-resident. individual accompanying such a performing artist, while the performing artist or individual is in a covered location for the purposes of such artist’s performance;

3. Guest athletes. A non-Chicago-resident professional athlete, or a non-Chicago-resident individual accompanying such professional athlete, who enters a covered location as part of their regular employment for purposes of the professional athlete/sports team competition.

4. Individuals with medical or religious exemptions and proof of a negative COVID-19 test. Individuals who have previously received a medical or religious exemption, provided such patrons provide the covered entity proof of the medical or religious exemption and a COVID-19 test administered by a medical professional within the last 72 hours prior to entering a covered location.

5. Minors participating in school activities. An individual 18 years of age or younger who enters a covered location to participate in an activity organized by a school or after-school program offered by any prekindergarten through grade twelve public or non-public school.

6. Voters. An individual who enters for the purposes of voting in a municipal, state, or federal election; or, pursuant to law, assisting or accompanying a voter or observing such election.

Key-takeaways for employers.

Employers should take the following steps immediately to ensure compliance:

1. Request, obtain and retain all supporting documents for employee vaccination and testing records. The Public Health Order requires that all employers, regardless of size, require employees show proof of full vaccination or provide evidence of a negative COVID-test weekly if unvaccinated. Employers should ascertain employees’ vaccination-status, maintain a roster of employees’ vaccination status, and create a log to record/track test results. Pursuant to the ETS, employee vaccination status is considered a confidential medical record that must be maintained separate from employee personnel files. It is also important to note that the vaccine or test requirement only applies to employees working in an area of the establishment where patrons are required to show proof of vaccination. For example, kitchen staff that work exclusively in the kitchen are not covered by the order, as long as they do not enter the “covered area” where patrons are consuming food and beverages.

2. Develop a plan to confirm patron vaccination status. All covered entities must ensure that all patrons over the age of 5 are fully vaccinated. Although the Public Health Order does not prescribe the means for determining patron vaccination status, it allows patrons to provide the requisite proof prior to entry, either directly to the covered entity or through an intermediary such as an event planner. Covered entities should determine how they will inquire about patrons’ vaccination status and what to do in the event a patron refuses to comply.

3. Draft or modify your existing COVID-19 plan. To ensure compliance with the Public Health Order employers should ensure that any existing COVID-19 written plans include the mechanisms for inquiring about employee vaccination status, maintaining employee testing records, and confirming patron vaccination status. To the extent employers do not have a written COVID-19 Plan, the City of Chicago has provided a template plan here.

4. Post the requisite signs. The City of Chicago has provided template signs here.

Conn Maciel Carey stands ready to assist Chicago area employers with these or other COVID-related questions, so please reach out to the authors or any CMC attorney with whom you have worked in the past.

Happy New Year!