With the new year comes a new set of health orders and employer obligations related to the COVID-19 pandemic. As a last-minute holiday present to Chicago businesses, the City announced a new public health order mandating that covered businesses require patrons as young as 5 years old to present proof of full vaccination, and require unvaccinated employees to undergo weekly COVID-19 testing. A few days after Chicago's announcement, Cook County followed suit, announcing its own health order with commensurate obligations.
How should employers prepare? Much's Labor & Employment team outlines the key elements of the City and County orders, including guidance on what employers should do now.
Are small employers covered, or just larger employers?
Employers of any size are subject to the Orders, provided they operate one or more "Covered Locations."
What is a "Covered Location"?
In general, the Orders cover restaurants and bars, fitness and exercise venues, as well as entertainment and recreational venues where food and drinks are served. As stated in the Orders, "Covered Locations" are:
- 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.
- Event spaces, such as hotel ballrooms, commercial event and party venues, and nightclubs.
- Gyms and fitness venues, such as 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.
- 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.
There are exceptions, however. The Orders do not cover houses of worship; K-12 schools; locations in O'Hare and Midway airports; locations in residential or office buildings that are limited to residents, owners, or tenants of the building (such as your office kitchen or condo common area); or food service establishments providing only charitable food services, such as soup kitchens.
If I'm a Covered Location, what are my obligations with respect to patrons?
Covered Locations are required to verify that any patron age 5 or older is fully vaccinated against COVID-19. The Orders adopt the most restrictive definition of "fully vaccinated" in use by the Centers for Disease Control and Prevention (CDC) or the applicable local health department. As of December 30, 2021, that means two weeks after the second dose of a two-dose vaccine series or two weeks after a single-dose vaccine. It does not yet include booster shots.
There are some exceptions, however. For example, Covered Locations do not need to check the vaccination statuses of patrons entering an establishment for less than 10 minutes to order and carry out food or to use the bathroom. In addition, individuals who have received a medical or religious exemption can still enter these locations, provided they show proof of the medical or religious exemption and a COVID-19 test "administered by a medical professional" within 72 hours prior to entering the Covered Location.
And, for those of you reading this article who are a "nonresident performing artist" or "nonresident professional athlete," first, thanks for reading, and second, you're not covered and don't need to show proof of vaccination status before playing in Chicago.
What counts as sufficient proof of vaccination status?
It's the proof you would expect. Patrons can present a physical CDC COVID-19 Vaccination Record Card or show a paper or electronic copy of one (such a picture on a phone) that shows the patron's name, brand of vaccine, and dates administered. Also acceptable are official immunization records from the jurisdiction where the vaccine was administered. Patrons who are age 16 or older will also need to provide identification showing their name, such as a driver's license, passport, or state ID card.
Are businesses required to keep copies of patrons' vaccination statuses?
No, and nor should they.
OK, so that takes care of how we handle members of the public. But what about our employees? Do the Orders require that they be vaccinated?
No, the Orders are not requiring that businesses mandate employee vaccinations. Rather, it’s a shot-or-test requirement. In other words, employees who work at these covered entities must either present proof of vaccination to their employer or undergo the weekly testing required by the recent Occupational Safety and Health Administration (OSHA) emergency rule.
Wait, I thought the OSHA rule was on hold? Or on again? Honestly, it's a bit confusing.
We hear you. As of the date of this article, it's back on again, but now legal challenges to the rule are before the U.S. Supreme Court. Stay tuned on that front. However, regardless of what happens with that rule, Chicago and Cook County will be able to enact these testing requirements. So, even if the OSHA rules are never implemented, the local requirements in the Orders will still take effect January 3, 2022.
What vaccination information do I need to collect from employees?
Employers are required to obtain confirmation of employees' vaccination statuses, and the acceptable proof of vaccination is the same as for patrons. Notably, the Orders' guidance states that employers are not required or expected to maintain copies of employees' proof of vaccination, but they are required to document the verification and compliance, and to have those records available for inspection by the city.
But what about testing? That's what I'm most worried about.
Employees who are not fully vaccinated against COVID-19 will be required to receive a COVID-19 test every seven days and provide to their employers verification of a negative result.
Just as with the OSHA rule, only certain tests are considered acceptable. The test cannot be an antibody test, but instead must be a test approved by the Food and Drug Administration (including Emergency Use Authorization), such as a PCR or antigen test. Additionally, over-the-counter boxed tests are acceptable only if they were observed by either the employer or an authorized telehealth proctor. Employees conducting the test on their own at home and then reporting the results – which is how most people use boxed COVID-19 test kits – would not qualify as acceptable testing under the Orders.
What records do I need to keep of negative tests?
The Orders and the City's guidance state that they do not expect or require employers to keep copies of the negative test results. Rather, they expect that employers will keep a log that documents verification of the test results and compliance with the Orders.
What if an employee tests positive?
The employee must be excluded from the workplace and follow CDC guidelines. If the test result is inconclusive, the employee should be retested in order to provide a positive or negative test result.
Do I have to pay for tests? Or pay employees for the time spent obtaining a test outside of working hours?
These are excellent questions that, unfortunately, still have unclear answers. Much of the current guidance on who pays for a test, or whether the time spent taking a test is compensable, pre-dates current developments and is predicated on the testing being employer-mandated, rather than mandated by government orders. OSHA's position with respect to its testing rule is that employees generally bear the cost of testing, but even OSHA acknowledges that "employer payment for testing may be required by other laws." OSHA's position may not be the position of the Illinois Department of Labor, and the question of who pays for testing in the context of employees with medical or religious grounds for not becoming fully vaccinated is not clear. For now, we await further guidance on how employers are meant to approach this issue.
What else? Any other requirements? I'm guessing there's another poster to put up.
There are some additional requirements, including a poster. They can be found on the City of Chicago website. Employers subject to the Orders also will need to "develop and keep a written record for describing the protocol for implementing and enforcing the requirements" of the Orders. The City of Chicago has issued guidance for employers' protocols, but it will not be issuing template policies. The City has also issued a template "COVID-19 'Proof of Vaccination' Compliance Plan," as an example of how to track employee test results.
Any other takeaways?
As with any new COVID-19 guidance and requirements, the situation remains fluid. Additional clarifications and guidance may be issued before and after the Orders take effect on January 3, 2022. Employers have become adept at adapting to what seems like an ever-changing regulatory landscape, and the Orders are just the latest example.
As always, Much's Labor & Employment team is here to help employers navigate compliance with COVID-19 regulations and design policies tailored to their businesses.