Twin Cities Issue Vaccine Mandates for Restaurants, Bars, and Entertainment Venues

On January 12, 2022, just one week after issuing mask mandates, Minneapolis Mayor Jacob Frey and St. Paul Mayor Melvin Carter issued executive orders mandating that places of public accommodation serving food and drinks indoors require persons to furnish proof of vaccination or negative PCR or antigen tests. Then, on January 13, 2022, and January 14, 2022, respectively, Mayor Carter and Mayor Frey each issued additional emergency regulations amending their January 12, 2022, orders.

Similar to the mask mandates, the Twin Cities’ respective vaccine mandates describe the rapid spread of the Omicron variant of the coronavirus as the reason for the new measures. The key provisions of the cities’ vaccine mandates are summarized below.

Minneapolis Emergency Regulations No. 2022-4 and No. 2022-5

The Minneapolis vaccine mandate provides, in relevant part, the following:

[A]ny space of public accommodation in the City of Minneapolis where food and/or drink is sold or served indoors for consumption onsite shall admit only those persons who furnish proof of a Completed Vaccination Series against COVID-19 occurring at least two weeks prior to entry, or proof of a negative COVID-19 PCR or antigen test conducted by a medical professional from a sample that was collected from such person within three calendar days prior to the person’s entry.

The regulations also reaffirm the previous mask mandate by stating that “[a]ll individuals, regardless of vaccination status, must wear a Medical-Grade Mask or Cloth Face Covering while not actively engaged in eating and/or drinking onsite.” The regulations also reiterate the requirement that employers operating businesses subject to the regulations must require their employees to wear masks “whenever such employees have face-to-face contact with the public,” regardless of an employee’s vaccination status.

Interestingly, the regulatory framework also previously included language regarding OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which was stayed by the Supreme Court of the United States on January 13, 2022. That language was rescinded by way of Minneapolis Emergency Regulation 2022-5 on January 14, 2022. The language previously stated the following:

All employers of businesses that are spaces [of] public accommodation subject to this Regulation shall comply with OSHA standards OSHA standards 1910.501(e) and (g), as existing on the date of issuance of this Emergency Regulation, relating to employee vaccination status and testing at covered locations, regardless of the number of their employees. (Emphasis added.)

OSHA Standard 1910.501(e) concerns a vaccine mandate for employees, while 1910.501(g) concerns a testing mandate (if an employee is not vaccinated). Previously, it was unknown whether this language would remain in effect after the Supreme Court’s decision, but that question was answered strongly in Minneapolis’s new emergency regulation. Nevertheless, employers may want to keep their eyes on this because the language may be back depending on the ultimate resolution of the OSHA ETS litigation.

The emergency regulations define “space of public accommodation” as “a business, or an educational, refreshment, entertainment, or recreation facility, or an institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public.” The regulations also provide various examples of spaces of public accommodation subject to the proof of vaccination or negative test requirement, including:

• “indoor restaurant spaces or coffee shops;
• cafes within larger spaces (e.g., museum cafes);
• bars;
• sports venues that serve food or drink for onsite consumption;
• movie theaters;
• bowling alleys;
• other entertainment venues that serve food or drink for onsite consumption;
• conventions (if food is being served);
• catering halls; and
• food court seating areas, if exclusive to specific establishments.”

Places and establishments expressly excluded from the regulation’s vaccine mandate include:

• “K-12 and early childcare settings;
• hospitals;
• congregate care facilities or other residential or healthcare facilities;
• shared consumption areas not exclusive to an individual space of public accommodation;
• establishments and/or food service locations that provide take out only for off-site consumption;
• any location where food or drink is consumed as part of a religious practice;
• any portion of a location that is outdoors, meaning the area is fully open to the outside on two or more sides;
• grocery stores, convenience stores, bookstores or other establishments that primarily sell packaged food and other articles for offsite use, except in seated dining areas within those stores; and
• soup kitchens or other similar sites serving vulnerable populations.”

The regulations identify what “completed vaccination series” means, which is defined as two weeks “after an individual has received the second dose in a two-dose series of an Approved COVID-19 Vaccine or a single dose in a one-dose Approved COVID-19 Vaccine.” In addition, “approved COVID-19 vaccine” is defined as “a vaccine that has been authorized or approved by either the Food and Drug Administration or the World Health Organization to prevent COVID-19, whether for emergency use or otherwise.”

the new regulation issued on January 14, 2022, further described what proof of vaccination may consist of, including: “presentation of a [U.S. Centers for Disease Control and Prevention (CDC)]-provided card, [a] photograph of [the] card, other government-approved record of vaccination, or an application approved by a governmental entity (e.g. Docket) to hold immunization information. A photo identification is not required unless otherwise required by law or by policy of the space of public accommodation.”

Finally, the new regulation also sheds light on what a negative COVID-19 test means. The regulation states that the following is sufficient: “an email, printout or screen shot with the name of the individual and the test result showing the date of the test. A photo identification is not required unless otherwise required by law or by policy of the space of public accommodation.”

The window for employers to comply is longer than the one-day period the mask mandate provided, with the regulation taking effect on January 19, 2022, at 8:00 a.m., and remaining in effect for 40 days following, “or at the end of the declared local public health emergency to which it relates, whichever occurs first.”

Emergency Executive Orders 2022-4 and 2022-5

The St. Paul vaccine mandate is similar in many respects to the Minneapolis one. The emergency executive order provides the following:

[A]ny licensed business that is a space of public accommodation in the City of Saint Paul during any time that food and/or drink is sold or served indoors for consumption onsite shall limit admission of patrons to the area of the licensed premises where food and/or drink is being consumed, to only those persons who furnish proof of a completed vaccination series against COVID-19 or a negative COVID-19 test obtained within seventy-two (72) hours of entry.

Not all restaurants will be subject to this requirement because they are not licensed by the City of St. Paul—only restaurants specifically licensed will be subject to the requirement. This typically means only those places with alcohol licenses.

In addition, the St. Paul mandate also requires that:

any licensed business, during any time that a ticketed event is being held, that is a space of public accommodation in the City of Saint Paul during any time that food and/or drink is sold or served indoors for consumption onsite shall limit admission of patrons to the area of the licensed premises where food and/or drink is being consumed, to only those persons who furnish proof of a completed vaccination series against COVID-19 or a negative COVID-19 test obtained within seventy-two (72) hours of entry.

Like the Minneapolis mandate, the St. Paul mandate includes language regarding OSHA’s COVID-19 ETS setting forth a vaccination and testing mandate that was stayed by the Supreme Court of the United States on January 13, 2022. In response to the Supreme Court’s decision, St. Paul revised the executive order to remove the implicated language. Previously, the executive order provided as follows:

All employers of businesses that are spaces public accommodation subject to this Regulation shall comply with OSHA standards 1910.501(e) and (g), as existing on the date of issuance of this Emergency Regulation, relating to employee vaccination status and testing at covered locations, regardless of the number of their employees. (Emphasis added.)

As stated above, this language largely resembles the Minneapolis regulation.

Employers may want to keep their eyes on this because the language may be back depending on the resolution of the OSHA ETS litigation.

The executive order defines “a licensed business that is a space of public accommodation” as “an entity that holds a City license that is a business, or an educational, refreshment, entertainment, or recreation facility, or an institution of any kind, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public.” A “ticketed event” is defined as “an event where all patrons must obtain a ticket to attend the event and tickets were available for purchase at least 14 days in advance of the event.”

With respect to terms specific to vaccination, the executive order defines “proof of a completed vaccination series against COVID-19” as “presentation of a CDC-provided card, photograph of card, other government-approved record of vaccination, or an application approved by a governmental entity (e.g. Docket) to hold immunization information in conjunction with any photo identification that includes a photograph and name of the individual. A photo identification is not required for individuals under the age of 18.” A “completed vaccination series” is defined by the executive order as “two weeks following completion of any CDC-approved vaccination series, including: a 2-dose series of an mRNA COVID-19 vaccine (Pfizer-BioNTech or Moderna), or a single-dose COVID-19 vaccine (Johnson & Johnson’s Janssen vaccine).”

The St. Paul order also specifies what constitutes a “negative COVID-19 test,” defining it as “an email, printout or screen shot with the name of the individual and the test result showing the date of the test in conjunction with any photo identification that includes a photograph and name of the individual.” (The executive order states that “photo identification is not required for individuals under the age of 18.”) Similar to the Minneapolis mandate, the St. Paul one also does not allow at home tests as proof of a negative COVID-19 text.

The executive order provides an exemption for certain St. Paul businesses; the Minneapolis mandate does not include a comparable exemption. Namely, the executive order provides that “any facility hosting an event or activity (on a one-time or ongoing basis) that holds a license issued by the City of Saint Paul is not subject to these requirements for a specific event if no food or beverages will be consumed at the event and the facility follows all supplemental COVID-19 safety measures” is exempt from implementing the required vaccine and testing requirements. As defined by the executive order, such supplemental COVID-19 safety measures include:

• “requiring face coverings be worn by all individuals, regardless of vaccine status, except young children at risk of suffocation and persons who cannot medically tolerate wearing a face covering.
• mak[ing] masks available for staff and attendees.
• providing sufficient hand sanitizer and hand washing facilities.
• following CDC-recommended cleaning protocols.
• maintaining as much social distancing as possible.
• maximiz[ing] indoor air ventilation.”

Like the Minneapolis window of compliance, the St. Paul compliance window remains open a relatively long time. The executive order will take effect on January 19, 2022 (generally) and on January 26, 2022 (for ticketed events). While the window of compliance is longer than the mask mandate, businesses may want to begin preparations immediately.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.