Seyfarth Synopsis: On October 13, 2021, the San Francisco Department of Public Health issued a revised COVID-19 public health order. Of interest to many employers, the City outlined when certain businesses—such as office workspaces—may allow fully vaccinated individuals to stop wearing face covering indoors. It also outlined the vaccination benchmarks by which the City will lift the indoor universal face covering requirement altogether.

Like Tony Bennett singing his heart out about San Francisco, the City’s mayor had some big news. After the mayor teased changes last week, the SFDPH finally issued a revised public health order with two important changes to the City’s indoor face covering rules. A redline of the changes to the order is here and updated FAQs relating to the order are here.

High On A Hill, It Calls To Me—Indoor Face Covering Requirements Are Loosened

Effective October 15, 2021, the order loosens indoor face covering requirements for fully vaccinated stable cohorts in offices, vehicles used for work, indoor fitness businesses, adult lectures and classes (though not high school or grammar schools), and religious gatherings. Personnel in these spaces may drop their face coverings indoors if the business meets the City’s strict vaccination requirements.

The requirements for eliminating the indoor face coverings vary slight by business type. In offices, for example, to take advantage of the new rules, employers must ensure that:

  • All people entering the facility provide proof they are fully vaccinated;
  • No person is unvaccinated due to disability / religious exemption;
  • The only people in the office are “Personnel” of the business. “Personnel” is defined as employees, contractors and sub-contractors, independent contractors, vendors who are permitted to sell goods onsite, volunteers, and other individuals who regularly provide services onsite at the request of the business. If a visitor is present, everyone in the office space must wear a face covering, except as provided below;
  • The business controls access to the office space to ensure that all people entering are fully vaccinated. People who enter the office on an intermittent / occasional basis (i.e. delivery personnel) need not provide proof of vaccination but must wear a face covering;
  • No children under 12 are present;
  • The business has implemented at least one of the following ventilation strategies: (1) all available windows and doors accessible to fresh outdoor air are kept open as long as air quality and weather conditions permit; (2) fully operational HVAC system; or (3) appropriately sized portable air cleaners in each room; and
  • The employer has not experienced an outbreak of COVID-19 (three or more cases in a rolling 14-day period) for the past 30 days.

Above The Blue and Windy Sea, Uncontrolled Settings Still Require Masks

A Workplace With Unvaccinated Employees. If offices have onsite employees who are not fully vaccinated, the order allows offices to provide distinctive workspaces where fully vaccinated personnel may remove their masks. The FAQs make clear that these “fully vaccinated” areas must be separated by doors, walls, or distance. Employers must also control access to the spaces to exclude everyone who is not fully vaccinated. And all people must wear a mask when in common areas indoors, such as hallways, lobbies, and elevators where such access is not able to be controlled.

Further Restrictions On Non-Office Businesses. The order places slightly different requirements on other types of businesses. For instances, in addition to the above, indoor classes and “other similar gatherings” may only drop their indoor face covering requirements if the gathering does not exceed 100 people and the class is a “stable group of people” who meet together on a regular basis (e.g., no drop-ins for gym classes).

Your Golden Sun Will Shine For Me, With Acceptable Proof of Vaccination

The order does not change how businesses can verify vaccination status. The following remain acceptable 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 a vaccination card stored on a phone or electronic device, (iv) documentation of vaccination from a healthcare provider, (v) written self-attestation of vaccination signed under penalty of perjury, or (vi) a personal digital COVID-19 vaccine record issued by the State of California or similar documentation issued by another governmental jurisdiction or approved private company.

The City By The Bay Provides Some Practical Challenges

Implementation. Implementing this order may pose some challenges for employers located where little cable cars climb halfway to the stars. First, the order does not contain any flexibility for accommodations. If any onsite employee remains unvaccinated due to a religious exemption or medical accommodation, then face coverings must be worn by the entire office, unless the employer segregates all unvaccinated individuals in a separate part of the office.

Metrics for Lifting Other Face Covering Rules. Second, and perhaps of more lasting importance, the City also published the metrics for when its broader indoor face covering order will lift. The City will issue a new public health order when:

  • The case count in the City is at or below CDC level of yellow transmission for at least three weeks (i.e., fewer than 50 cases per 100,000 of population for the past seven days and less than 8% rate for positive tests over the past seven days);
  • The total number of patients hospitalized in the City due to COVID-19 is no more than 65; and
  • Either 80% of the total population in the City (including children of all ages) have received their final dose of vaccine; or 8 weeks after the FDA grants emergency use authorization of any COVID-19 vaccine for children ages 5 to 11 years.

The counties of Alameda, Contra Costa, Marin, Napa, San Mateo, Santa Clara, Sonoma and the City of Berkeley have reportedly agreed to follow a similar framework. And, in addition to San Francisco, Contra Costa is scheduled to also permit fully vaccinated groups to forego masking on November 1, 2021.