What will happen with Open Public Meetings after COVID restrictions are lifted on June 30?

Special guest post by WPPA Counsel Frank Chmelik

With COVID-19 restrictions due to sunset on June 30, 2021, what should ports know about holding Open Public Meetings going forward?

OPEN PUBLIC MEETINGS AFTER JUNE 30, 2021

Washington State plans to lift all COVID-19 restrictions on June 30, 2021.  However, this does not necessarily mean that the “state of emergency” will end June 30th. Speaking about the state of emergency, Governor Inslee said, “the virus is not done with us.”

The Open Public Meeting Act restrictions contained in Proclamation 20-25 (which are tied to the state of emergency) will continue past June 30th.  On May 21ST 2021, Governor Inslee updated Proclamation 20-25.15 incorporating the new CDC face mask guidance for fully vaccinated persons into his Healthy WA: Roadmap to Recovery plan. Under this proclamation, the state no longer requires fully vaccinated persons to wear face masks indoors or outdoors except for in certain “CDC exempted locations” (health care settings, correctional facilities, homeless shelters, schools, and public transportation).[1]

Here is a brief review of the ongoing rules for holding port commission meetings.

OPMA Proclamation 20.28.15 Remains in Effect Until the State of Emergency is Over or It Is Otherwise Rescinded:  The Governor did not repeal the January 2021 Proclamation 20-28 which provided Open Public Meeting Act  (“OPMA”) restrictions and prohibitions.  Those restrictions and prohibitions remain in effect for the duration of the state of emergency or until amended or rescinded.   Under these orders, if a government agency holds a public meeting, then the meeting must comply with all the provisions of Proclamation 20-28.14, which includes but is not limited to the following:

·       Agencies holding public meetings must (a) provide the opportunity for the public to attend the proceedings through telephonic access and may also include other electronic means of remote access; and (b) provide the ability for all persons attending the meeting to hear each other at the same time.

In Person Meetings Must Comply with the Governor’s “Miscellaneous Venue” Requirements.  If any agency elects to include an in-person component to their public meeting, then the meeting must comply with Proclamation 20-28.14 which includes each of these four requirements:

·       Compliance with the Governor’s Miscellaneous Venues guidance;

·       Any person wishing to attend an in-person public meeting component must be able to do so at a physical location or an overflow physical location which provides the ability for all persons attending to hear each other at the same time;

·       If at any time during the public meeting the in-person component fails to comply, the public meeting (including the remote/virtual portion) must be recessed until compliance is restored or if it cannot be restored then continued or otherwise terminated;

·       The public agency shall accommodate to the extent practicable, participation by public and the press via listening and speaking over telecommunication devices (i.e., conference call function or other call-in options).

The Miscellaneous Venue Guidance Has Changed.  On May 21st, 2021,  Governor Inslee updated the Miscellaneous Venues guidance, which applies to public meetings. In relevant part, the updated Miscellaneous Venues rules allow for the creation of a “vaccinated and unvaccinated sections” with the following rules: [2]

·       In-person meetings are allowed. Occupancy in each room/area is limited to 50 percent capacity or 1,000 people, whichever is fewer;

·       Total indoor capacity can exceed 50% if there are fully vaccinated sections/areas in use;

·       Occupancy restrictions and physical distancing requirements are removed if all attendees are vaccinated;

·       For sections/areas with unvaccinated attendees, six feet of physical distance must be maintained between individuals/groups/tables;

·       Six feet distance must be maintained between the fully vaccinated-only sections/areas and any other section/area of the venue;

·       Face coverings are not required for fully vaccinated individuals.

Rules for Fully Vaccinated Sections.  Sections/areas reserved for fully vaccinated patrons are only allowed if the following conditions are met:

·       Vaccinated sections/areas must be reserved for “fully vaccinated” people who can show proof of vaccination if requested.

·       “Fully vaccinated” means vaccinated against COVID-19 by a two-dose mRNA vaccine (such as Moderna and Pfizer), or a single dose vaccine (such as Johnson & Johnson), and are considered “fully vaccinated” two weeks after the final dose of vaccine (the second dose for a two-dose regimen, or the single dose for a single-dose regimen).

·       Children between the ages of 5 and 15 who can provide proof of having tested negative for COVID-19 within 72 hours of admission, are also allowed in the vaccinated section/area.

·       Children under the age of 5 do not need to provide proof of a negative COVID-19 test in order to be admitted to the vaccinated section/area when accompanied by a vaccinated adult.

·       No adults who are not yet fully vaccinated, including adults who are in the progress of being vaccinated, will be permitted in the vaccinated only section, even with a negative test.

·       Physical distancing is not required in a fully vaccinated-only section/area.

·       There must be at least 6 feet of distance between the Fully Vaccinated-only sections/areas and any other section/area in the venue.

·       Face coverings are not required for fully vaccinated individuals.

·       Documentation of vaccination status must be available upon request at any time.

·       Agencies may but do not have to request “proof.”

Documentation is Required.  The following documentation must be available upon request but there is no requirement that an agency ask to see the documentation:

·       Vaccination card (which includes name of person vaccinated, type of vaccine provided, and date last dose administered)

·       a photo of a vaccination card as a separate document

·       a photo of the attendee’s vaccine card stored on a phone or electronic device.

·       documentation of vaccination from a healthcare provider electronic health record or state Immunization Information System record.

·       Self-reported vaccination records that are not verified by a health care provider cannot be accepted.

Conclusions:  Based upon a review of the somewhat confusing exiting regulations we can state the following:

·       The OPMA restrictions updated and contained in Proclamation 20.28.15 remain in effect until the state of emergency is over or the proclamation is rescinded.  This means that attendance by electronic means must be maintained.

·       Get a big enough room so that the capacity restrictions are unlikely to be an issue.

·       There still remains an overall limit of 50% fire code capacity or 1,000 people unless a vaccinated section is used.

·       There still remains a requirement that all persons attending be able to hear each other at the same time;

·       There still remains a requirement that if at any time during the public meeting the in-person component fails to comply with the rules, the public meeting (including the remote/virtual portion) must be recessed until compliance is restored or if it cannot be restored then continued or otherwise terminated.  This can be accomplished by a recess of sufficient time so that everyone can join remotely.

·       An agency may elect to have an in-person component which includes a “fully vaccinated section” and an “unvaccinated section”.  There must be at least six feet between these sections.

·       In the “fully vaccinated section” there is no mask or  social distancing requirements.  In the “unvaccinated section” both masks and social distancing are required.

·       To gain entry into the “fully vaccinated section” proof of vaccination (except for children) “must be available upon request”. Children aged 5-15 may either show proof of vaccination or proof of a negative test within the past 72 hours.  Children under 5 can accompany a full vaccinated adult.

·       The “best practice” is to post a sign that states substantially as follows:

FULLY VACCINATED SECTION

PLEASE READ THE FOLLOWING BEFORE ENTERING.

THE FULLY VACCINATED SECTION IS LIMITED TO ONLY THOSE PEOPLE THAT HAVE BEEN “FULLY VACCINATED.”

“FULLY VACCINATED” MEANS VACCINATED AGAINST COVID-19 BY A TWO-DOSE MRNA VACCINE (SUCH AS MODERNA AND PFIZER), OR A SINGLE DOSE VACCINE (SUCH AS JOHNSON & JOHNSON).  PEOPLE ARE CONSIDERED “FULLY VACCINATED” TWO WEEKS AFTER THE FINAL DOSE OF VACCINE (THE SECOND DOSE FOR A TWO-DOSE REGIMEN, OR THE SINGLE DOSE FOR A SINGLE-DOSE REGIMEN).

CHILDREN BETWEEN THE AGES OF 5 AND 15 WHO CAN PROVIDE PROOF OF HAVING TESTED NEGATIVE FOR COVID-19 WITHIN 72 HOURS OF ADMISSION, ARE ALSO ALLOWED IN THE VACCINATED SECTION/AREA.

CHILDREN UNDER 5 MAY ACCOMPANY A FULLY VACCINATED ADULT WITHOUT ANY PROOF OF A NEGATIVE TEST OR VACCINATION.

PROOF OF VACCINATION STATUS MUST BE AVAILABLE UPON REQUEST AT ANY TIME.  THE FOLLOWING ARE ACCEPTABLE PROOF OF VACCINATION STATUS:

·       VACCINATION CARD (WHICH INCLUDES NAME OF PERSON VACCINATED, TYPE OF VACCINE PROVIDED AND DATE LAST DOSE ADMINISTERED)

·       A PHOTO OF A VACCINATION CARD AS A SEPARATE DOCUMENT

·       A PHOTO OF THE ATTENDEE’S VACCINE CARD STORED ON A PHONE OR ELECTRONIC DEVICE

·       DOCUMENTATION OF VACCINATION FROM A HEALTHCARE PROVIDER ELECTRONIC HEALTH RECORD OR STATE IMMUNIZATION INFORMATION SYSTEM RECORD. 

More Information:  For more detailed information please see the WPPA’s general counsel’s  blog at https://chmelik.com/phase-3-updates-vaccination-status-masking-and-opma-attendance/

[1] Employers must require proof of vaccination or self-attestation from every employee before those employees are permitted to work at the worksite without wearing a mask. Employers may choose the form of proof they will require. However, employers may still require employees to wear masks while at the worksite regardless of vaccination status. Employers may require vaccination as a condition of employment, except as prohibited by state or federal law. Additionally, businesses may still implement mask requirements for their customers.

[2] This only applies to Phase 3 counties.  Phase 2 counties cannot use this additional guidance.