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Covid-19 Employer Update: New Honolulu County Order Requiring Full Vaccination Or Weekly Testing For Employees Of Certain Entities Starts September 13th

September 2, 2021

On August 30, 2021, Honolulu Mayor Rick Blangiardi announced that effective September 13, 2021, businesses covered by the Order must require patrons, full or part-time employees, interns, volunteers, or contractors to either show proof of full vaccination or proof of a negative COVID-19 test result for entry into covered businesses. Individuals who opt for testing will need to ensure they utilize an FDA approved, or FDA EUA approved, molecular or antigen test. Patrons opting for testing must show proof of a negative COVID-19 test result taken within 48 hours of entry into the covered premises. Full or part-time employees, interns, volunteers, or contractors opting for testing must show proof of a negative COVID-19 test result taken within seven (7) days of entry into the covered premises. Individuals who remain on premises for 15 minutes or less per 24-hour day are exempted from these requirements.

Important things to know about the new Order:

• Employers must also develop a written protocol for ensuring compliance with the new Order, which should describe the process for collection and/or examination of proof of vaccination or test result and also, for patrons, proof of identification bearing the same identifying information as the proof of vaccination or testing.
• Covered businesses will need to post an 8.5 x 11 inch (minimum) sign in a conspicuous place viewable to patrons entering the establishment of the COVID-19 vaccination requirement and informing them that both patrons and employees are required to show proof of full vaccination or satisfy an exception (including a negative COVID-19 test).
• Covered businesses will need to submit a signed attestation for compliance with the Order that can or will soon be available at this link: https://www.oneoahu.org/test-attestation.

Covered businesses include:

• Entertainment and recreational settings (bowling alleys, movie theatres, aquariums, etc.)
• Restaurants/bars
• Indoor gym and fitness facilities (includes hotel gyms, etc.)

Tips for employers:

• Identify an individual who will be responsible for collecting and managing proof of vaccination and/or negative COVID-19 test results.
• For employees, proof of vaccination and/or COVID-19 test results should be stored separate from employee personnel files and kept in a confidential manner with limited and defined access to the individual(s) identified to manage this documentation. Treat the documentation as you would any other medical documents to maintain employees’ privacy.
• The Order does not appear to prohibit a covered business from instituting a vaccination mandate without offering a testing option for Employees. However, any such requirement should provide for exemptions for employees who have medical or disability or sincerely held religious reasons that prevent them from receiving a COVID vaccine. If issues arise regarding an employee’s medical or religious exemption, speak with Human Resources or legal counsel before taking any action against an employee.
• Limit requests for proof of vaccination or negative COVID-19 test results to just that—do not ask employees for detailed health information.

Before the Order goes into effect, employers should consult with their Human Resources and/or legal counsel to ensure proper policies and protocols are in place, including contemplating how the employer will handle non-compliance by employees. The full Order is available at this link: http://www.honolulu.gov/rep/site/may/may_docs/2108156-CCH_Second_Amendment_to_Order_Implementing_Tier_5_certified_-_signed.pdf

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Notice: We are providing this Goodsill Alert as a commentary on current legal issues, and it should not be considered legal advice, which depends on the facts of each specific situation. Receipt of the Goodsill Alert does not establish an attorney-client relationship.