In response to rising COVID-19 case rates, on December 22, 2021, Mayor Muriel Bowser issued an order for the hospitality industry to mandate proof of vaccination before entrance for all customers over the age of 12.
Hospitality employers, including, restaurants, bars, and nightclub establishments.
Who else? Coffee shops and fast-food establishments that have seating if guests choose to sit down. Establishments like breweries, wineries, and distillery tasting rooms. Mixed-use facilities are also covered, establishments like food courts, nightclubs, hookah bars, pool and billiard halls, cigar bars, concerts, live entertainment and sporting venues, movie theatres, adult entertainment venues, and bowling alleys.
You cannot allow customers inside without them displaying proof of vaccination against COVID-19. That proof can be a physical CDC vaccination card, digital copy/photo, or other verification apps (such as VaxYes or CLEAR). The mandate begins Sunday, January 15, 2022, and customers must show they have had the first vaccination by that date. By February 15, 2022, customers must show proof that they have had a full initial course of vaccination.
You must also prominently post signage at your entrances notifying the public of the vaccination entry requirement.
Individuals entering for a quick and limited purpose (for example, placing an order for takeout, picking up an order, or making a delivery).
Harder Exceptions and the Difficult Conversation:
It’s also likely that you will encounter guests who claim they should be exempt from the mandate because of a medical or religious reason. The order allows for these exceptions. Be prepared to deal with both situations.
If a customer requests an exception to a vaccine requirement due to a disability, think about it like this… if you’re in a basement bar and an individual with a wheelchair comes in, what must you do? The answer is that you must engage with them in a cooperative dialogue, or a good-faith discussion, to see if a reasonable accommodation is possible. For an unvaccinated customer, you should consider providing take-out options for food offerings, outdoor seating spaces, and other similar accommodations.
As for religion, you are prohibited from discrimination. The law is not necessarily clear when it comes to vaccine mandates, although the general consensus suggests you can enforce a government-mandated or business-created vaccination requirement—without questioning the sincerity of their religious belief. As with disability, you should look at what accommodations are possible. But it is important to keep a record of any accommodation requests, resolutions, and compliance efforts to show they are doing their best to satisfy the requirements.
At the end of the day, you do not have to provide any reasonable accommodation that would cause a direct threat to other customers or employees or otherwise impose an undue hardship on the business. Examples of accommodations that are likely to pose a direct threat or an undue burden include allowing unvaccinated customers to eat in the interior portion of a busy restaurant.
These safety precautions will likely be standard operation for the foreseeable future for the hospitality industry. Since the safety of guests, the public and employees is always a high priority, compliance with the District and perhaps national requirements will be the best way to protect your employees, guests, diners and patrons and ensure that they are in a safe environment.
As new developments occur in the hospitality industry, Offit Kurman will continue to assess and provide necessary updates. If you have questions about how to enforce these mandates, please contact me, or any member of our employment and hospitality group.
ABOUT DANIEL TRUJILLO ESMERAL
Daniel Trujillo Esmeral is an attorney in Offit Kurman’s labor and employment practice group. He focuses his practice on providing proactive and preventative counseling and defending businesses throughout the litigation process. The dual nature of Mr. Trujillo Esmeral’s practice allows him to partner with clients to come up with solutions to their legal issues, big and small, while they focus on growing their businesses.
ABOUT OFFIT KURMAN
Offit Kurman, one of the fastest-growing, full-service law firms in the United States, serves dynamic businesses, individuals and families. With 15 offices and nearly 250 lawyers who counsel clients across more than 30 areas of practice, Offit Kurman helps maximize and protect business value and personal wealth by providing innovative and entrepreneurial counsel that focuses on clients’ business objectives, interests and goals. The firm is distinguished by the quality, breadth and global reach of its legal services and a unique operational structure that encourages a culture of collaboration. For more information, visit www.offitkurman.com.
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