Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Updated January 10, 2022: The Boston Public Health Commission posted Guidance on “the equitable implementation of Boston’s B Together vaccination requirements.” The Guidance clarifies that covered employers “must provide reasonable accommodations to employees who require them because of a medical condition, disability, or other civil-rights related reason.” (The Order and FAQs from the City were silent on employee accommodations, focusing instead on accommodations for customers.)
In line with the ADA and state law, the Guidance states that “if an employee requests an exception to the vaccine requirement or additional time to provide their proof of vaccination,” then an employer “must engage with them in a cooperative dialogue, or a good faith discussion, to see if a reasonable accommodation is possible.” The Guidance also states that an employer does “not have to provide a reasonable accommodation if it would cause a direct threat to other customers or employees of your business, including through risk of COVID-19 infection, or impose an undue hardship on your business.”
Employer should carefully analyze any requests for accommodations from employees regarding the Boston vaccine mandate, for compliance with this Order as well as state and federal laws.
On December 20, 2021, the City of Boston announced a new vaccination mandate, the “Temporary Order Requiring COVID-19 Vaccination for Indoor Entertainment, Recreation, Dining, and Fitness Settings in the City of Boston” (the “Order”), or, as City Hall calls it, “B Together.” Unlike the recent New York City mandate, Boston’s mandate does not apply to all employers. Instead, the Order applies to any entity that operates a “covered premises,” which means:
- Indoor portions of food service establishments offering food and drink, such as restaurants and bars, though not including establishments offering food or drink for off-premises or outdoor consumption.
- Indoor entertainment, recreational, and event venues, such as movie theaters, music or concert venues, commercial event venues, party venues, museums and galleries, sports arenas and indoor stadiums, convention centers, exhibition halls, theaters, bowling alleys, and “other recreational centers.”
- Indoor gyms and fitness settings, such as commercial gyms, fitness studios, yoga/pilates/barre/dance studios, boxing gyms, boot camps, indoor pools, and other facilities use for conducting group fitness classes.
The Order covers not only patrons, but also full- or part-time employees, interns, volunteers, and on-site contractors. That is, for employees to work on-site, they must be vaccinated in line with this schedule:
- January 15, 2022: Must present proof of at least one dose of vaccination.
- February 15, 2022: Must present proof of either one dose of a one-dose series, or two doses in a two-dose series.
Proof of vaccination means (1) a CDC COVID-19 Vaccination Record Card; (2) a digital image of a CDC card; (3) any other official immunization record from the place where the vaccine was administered; (4) a digital image of the official immunization record; (5) a letter, digital image, or report from a health care provider, pharmacy, or vaccination site establishing proof of COVID-19 vaccination; or (6) a smartphone app approved by the Commonwealth of Massachusetts or the City of Boston (such as Clear Health Pass, Common Pass, Key to NYC, VaxYes, IATA Travel Pass, and the Excelsior Pass). The vaccine mandate does not currently require boosters.
Covered entities also must post a sign at the entrance. It is available here for download in numerous languages.
Once the Order takes effect in January, City inspectors will check for compliance. First offenders will receive a warning. For a second offense, the Boston Public Health Commission can impose fines of up to $300 per violation, or the employer may face “other enforcement action.” While called a “Temporary Order,” it remains in effect until rescinded.
Employers are also reminded that Boston’s mask mandate remains in effect.
Employers operating covered entities in Boston should take steps to ensure that they are complying with this Order and consult with legal counsel if necessary. Compliance with the Boston Order does not alleviate an employer of their obligation to comply with any more stringent legal standards that may apply, such as portions of the federal OSHA ETS.