Covid Passports became enforceable this morning so if you operate a late-night premises with music, which serves alcohol at any time between midnight and 5am and have a designated place for dancing for customers, you have to enforce the new Covid regulations which require Covid Vaccination Passports.
The Health Protection (Coronavirus) (Requirements) (Scotland) Regulations 2021 are now enforceable. The FAQ’s have also just been published. (See the foot of this article.).
Despite opposition to the plans from the hospitality industry the Scottish Government brought the new rules in from 1st October, although delaying the enforcement to “allow businesses to develop a compliance plan” until today. The aim of the new legislation is to “encourage the remaining sections of the eligible population to be vaccinated.”
As far as the DRAM is aware licensees breaking the rules will initially get a visit from enforcers, at the final stage they would be reported to the Procurator Fiscal and could have their licences suspended. However, the publication of the FAQ’s could also reveal whether they will also face fines. Currently the maximum fine for breaking Covid regulations is £10,000 and the new legislation is a Covid regulation – The Health Protection (Coronavirus) (Requirements) (Scotland) Regulations 2021. If you breach Covid regulations you are also automatically barred from any further grant support.
- certification does not apply to people working, volunteering or performing in the setting as this would equate to mandatory vaccination for employment purposes however where an employee remains in the setting after their shift has finished, they would be required to demonstrate they have been fully vaccinated
The rules also apply to indoor events ( with 500 or more people); outdoor events (unseated) with 4,000 or more people any event with more than 10,000 people
Exempted are people:
- under 18
- not able to get the vaccine for medical reasons
- participants in vaccine trials (either current or past participants)
- the person responsible for the premises
- workers or volunteers at the venue or event
- emergency services responders and regulators carrying out their work
- people under 18, not able to get the vaccine for medical reasons, taking part in vaccine trials, venue staff or volunteers and emergency responders and regulators carrying out their work are exempt from the requirement to be fully vaccinated to be on the premises
Events not included in the scheme include COP26 which will see more than 30,000 people in Glasgow. The Scottish Government has included under events excluded from the legislation: “an event designated by the Scottish Ministers as a flagship event according to criteria”.
Also excluded are: religious events, funerals, marriages, and receptions, as well as marathons, cinemas, work or business conferences, organised pickets, street markets and illuminated trails. Unticketed events held outdoor with no fixed entry points.
Although late-night premises being used exclusively for receptions or gatherings related to a marriage ceremony, civil partnership registration or a funeral will also not be required to implement the scheme. This does not include premises that host other life events such as birthday parties, anniversaries or such like.
FAQ’s – Scottish Government’s clarification regarding questions asked by the industry:
The following are questions we have received from the industry which we have answered and published here in case they are useful clarifications for others. They should be used in addition to the main guidance.
Q. Does Vaccine Certification apply to all licensed premises open after midnight where there is dancing to live or recorded music?
A. Yes, if a premises meets ALL of the following it is in scope for Vaccine Certification:
- Alcohol is served at any time between midnight and 5am
- There is a dancefloor, or other designated space, for dancing by customers, and
- Live or recorded music for dancing is played
Q. Wedding receptions are not in scope but what about other milestone/life events that may run beyond midnight i.e. birthday/retirement/anniversary celebrations?
A. Vaccine certification is not required for weddings, funerals, civil partnerships and related receptions. If other milestone/life events are taking place in a premises that meet the late night definition criteria set out above, Vaccine Certification will apply.
Q. If a dance floor or space where dancing would usually take place is utilised for other purposes, such as by being partly covered with tables and chairs, does this take a premises out of scope for Vaccine Certification regardless of whether people may dance at any point after midnight?
A. If a premises (meeting the late-night definition criteria) reasonably expects that customers will want to dance to live or recorded music in an area where dancing would normally take place, is in the operating plan and there is an expectation by customers that dancing will feature in their late night experience, then Vaccine Certification will apply.
If a premises stops the playing of music from midnight, stops selling alcohol from midnight or takes steps to ensure dancing is not permitted/no facilities for it to take place from midnight, then the late night definition criteria will not be met and Vaccine Certification would not apply.
Q. What about premises operating after midnight where there is live or recorded music being played for general entertainment but there is no designated space for dancing and dancing is not a normal feature of the hospitality experience – would that premises be in scope for Vaccine Certification?
A. No, in this scenario a premises would not meet the late night definition criteria and Vaccine Certification would not apply.
Q. If a premises chooses to stop live or recorded entertainment at midnight but remain open for general service, where permitted by its licence, would Vaccine Certification apply?
A. No, in this event a premises would not meet the late night definition criteria and Vaccine Certification would not apply for general service. Similarly, if the premises stopped dancing or serving alcohol from midnight, Vaccine Certification would not apply.
Q. If an in scope premises that would not ordinarily have door staff is unable to hire new trained staff to check Vaccine Certificates at the door, will they need to close at midnight?
A. It is for operators to determine the best approach to compliance with Vaccine Certification, which may vary depending on the type of late night premises. There is no requirement in the regulations for those checking vaccine certificates to be industry accredited security personnel (hold an SIA license), but if checking is being carried out by door staff (manned guarding of licensed premises) and the task of refusing entry to anyone would fall to the person carrying out the checks then an SIA license would be required. Operators should also check the terms of their insurance arrangements where there may be a requirement for staff in certain roles i.e. door staff, to be industry accredited security personnel.
Q. I don’t have door staff as a condition of license and don’t have provision to hire/unable to find door staff, however I may need to covid vaccine certify. Do checks need to be carried out at the door or can they be carried out once customers have entered (i.e. when being served at the bar; seated at a table etc.)?
A. Vaccine certification is intended as a condition of entry where it applies, therefore checks should be made at the door/point of entry in affected settings meeting the late night definition criteria. It is for each premises to determine what measures to put in place, and at what point checking should begin i.e.:
- the time the premises opens, or
- the time the premises opens its dancefloor and provides music for dancing where this extends beyond midnight
Q. What should staff do if anyone cannot provide their vaccine certificate?
A. Anyone who is unable to provide evidence of having been double vaccinated should be refused entry, unless they can provide evidence confirming they are exempt. See toolkit for further information.
Q. In the event of individuals being separated from friends having been refused entry to a premises – is there a duty of care on venues not to leave people vulnerable and alone late at night?
A. As at any time, safety is always a priority and we would urge everyone planning a night out to think ahead and discuss any issues that Vaccine Certification may present for any member of a group so as to ensure no one is left alone and vulnerable as a result of being separated from friends, as should always be the case in normal times.
Q. What should staff do if someone claims to be exempt but is unable to present proof of exemption?
A. Following 18 October, it will be necessary to refuse entry to anyone who cannot present proof of double vaccination or of exemption in the late night sector. See toolkit for further information.
Q. What should staff do if they find evidence of attempted fraud in order to gain entry to premises?
A. In the first instance refuse entry. This should then be reported as soon as is practical to Police Scotland.
Q. If an event is taking place inside a premises which would previously have been controlled under the COVID19 event guidance, and also meets all four late night criteria, does the event need to check VC’s for all customers or only if its 500+ attendees?
A. If activity taking place within a premises meets the late night definition criteria then Vaccine Certification is required for all customers.
Q. If an event is taking place in a non-hospitality venue (i.e. an occasional license) and fulfills all four late night criteria, does the event need to certify customers or only if it’s 500+ attendees?
A. If activity taking place within a premises meets the late night definition criteria then Vaccine Certification would apply for all customers/attendees. Even if a premises doesn’t meet the criteria for a late night venue, vaccination certification could still apply if the event meets the “events criteria”. In this case, it would apply if it is an indoor unseated event of more than 500 – or a seated event of more than 10,000.
Q. We regularly have performances by bands and other entertainers. Sometimes people will dance, other times they won’t (dependent on the act). Will I have to covid certificate the events that I think people may dance at?
A. Yes, if there is a reasonable expectation, both on the part of the operator and the customer, that entertainment running beyond midnight will result in dancing, and all late night definition criteria is met, then this should be considered in scope for Vaccine Certification.
Q. Our events typically run until after 12 (around 12.45), the four criteria are met between 12 and close, but there’s no entry after 11pm. Do I need to certify customers who are there after midnight?
A. Yes, this will be required by regulations. Operators should however consider their approach in advance. It is for each premises to determine what measures to put in place, and at what point checking should begin i.e.:
- the time the premises opens, or
- the time the premises opens its dancefloor and provides music for dancing where this extends beyond midnight
If activity in a premises is expected to meet the late night definition criteria then vaccine certification should be part of the operational planning at the outset.
Q. I have hired out my function suite for a significant event (birthday party, anniversary, engagement etc.), there is only estimated to be a small number attending (less than 50). One of the immediate family members had their second vaccination delayed and was only able to get their second vaccine less than two weeks ago. Can that family member not attend? Who is liable for the costs incurred if the event is cancelled?
A. If the activity meets the late night definition criteria then Vaccine Certification applies. Enforcement will not commence until 18 October, before which no one should be refused entry to a premises. After 18 October entry should be refused to people who don’t meet the criteria for being on the premises. Normal contractual terms and conditions apply to bookings.
Q. Every last Saturday of the month we have a ceilidh band and a ceilidh, the demographic of customers is normally 60+, all people dancing are relatively well spaced out and it in no way could be contrasted with a nightclub, do I need to certify customers who are attending the ceilidh if it runs after midnight?
A. If the activity meets the late night definition criteria then Vaccine Certification applies. In this case, there is a designated area for dancing and music provided for the purposes of dancing – the type of music or dancing is not relevant to the criteria. Operators and organisers should take any requirement to comply with vaccine certification into account when planning an activity and include this in any customer communications so that, alongside Government public messaging, people come prepared.