Open for Business?  Indoor Dining, Drinks and Hospitality

PUBLISHED: 21st July 2021

The Health (Amendment) (No. 2) Act 2021

This Act enables cafés, pubs, restaurants and other licensed venues and businesses to reopen for indoor dining, drinks and hospitality, for customers who are fully vaccinated or who have recovered from COVID-19.

The reopening of indoor hospitality under the terms set out in this Act has been flagged by Government Ministers as a compromise, which is far from perfect, but which it is hoped will be welcomed by businesses that can reopen their indoor premises, while minimising potential transmission of the Delta variant of COVID-19 indoors and safeguarding public health.

Permitted Persons

The Act aims to “provide for a robust and enforceable system of verification of the health status of certain persons” to facilitate the reopening of indoor premises.  People that provide verification of their fully vaccinated status or recovery from COVID-19 within the past 180 days, will be considered to be ‘permitted persons’ for the purposes of indoor hospitality.  Only ‘permitted persons’ will be able to avail of indoor hospitality.

Children under the age of 18 accompanied by a parent or guardian who is a ‘permitted person’ will be exempt from this requirement. 

The Act places certain obligations on the proprietors, including:

• To only admit ‘permitted persons’ to indoor areas who have proof of their vaccination or health status and to check their documents.
• To not knowingly admit anyone to an indoor area that is not fully vaccinated or recovered from COVID-19 to the indoor premises.
• To ensure that the personal data of ‘permitted persons’ is not retained.

The Act grants additional powers to the Minister for Health to make regulations to increase the classes of ‘permitted persons’ to include those who have received a negative COVID-19 test.  The Government may decide to avail of this option in the coming months through the use of antigen or PCR tests. 

What information will suffice as ‘proof’ of vaccination or health status, will be decided by the Minister.  It may include the EU Digital COVID Certificate, a vaccination card and perhaps confirmation of having recovered status from COVID-19 from a recognised authority.

Compliance

Additional bodies may be created for the purposes of carrying out inspections of indoor premises, including the appointment of a ‘compliance officer’.  A compliance officer may enter a premises without a warrant to inspect, examine, observe, and enquire in order to assess whether the requirements of the Act have been complied with.  An indoor operator found to be in breach of their obligations under the Act, will be informed by the compliance officer and directed to take the necessary steps to comply. 

Failure to comply may lead to the compliance officer taking further steps which may include:

• Informing a member of the Garda Síochána.
• Bringing an application to the District Court seeking an emergency cessation order which can lead to closure of the premises for a period of up to 72 hours.
• Issuing a compliance notice requiring immediate compliance, failing which an application for closure may be made for a cessation order to the District Court which could lead to closure for up to seven days (first time offence) or 30 days (for any second or subsequent offence).   An appeal against a compliance notice or cessation order can be made to the Circuit Court.

If an emergency cessation order or cessation order is in place, the premises must place a notice to the outside of the premises and failure to do so is an offence.

The Act also creates a new offence that applies where a person provides a false or forged document verifying their health status, or fraudulently uses the personal document of another individual, shall be liable to a Class C fine of up to €2,500.

Duration

The provisions of the Act in relation to indoor premises will remain in force until 9 October 2021, when they are likely to be reviewed and they can then be extended for an additional period of three months.

A Successful Compromise?

While those in the hospitality sector will be pleased that from Monday 26 July their indoor premises will be able to reopen in certain circumstances to people who are fully vaccinated or recovered from COVID-19, it remains to be seen how the legislation will operate in practice and if it will be deemed a successful compromise.

A review of the recent legislation regulating outdoor seating for licensed premises is available here.

For more information contact Jennifer Clarke at jclarke@lkshields.ie or Katie Linden at klinden@lkshields.ie.