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FINRA Dispute Resolution Services (“DRS”) on September 17 announced an updated COVID-19 vaccination policy.

Effective October 4, all in-person participants must be fully vaccinated to attend hearings. There will be a “proof of negative PCR test” exception through November 19, except in Florida – where the exemption will continue indefinitely. Here is the policy in its entirety (footnotes are omitted):

Effective October 4, 2021 through July 1, 2022, all in-person participants, including arbitrators, mediators, counsel, parties, paralegals, witnesses, and others must be fully vaccinated to attend FINRA Dispute Resolution Services arbitration hearings or mediation sessions (hearing):

  • From October 4, 2021 through November 19, in-person attendees may, in lieu of being fully vaccinated, provide proof of a negative PCR test within 72 hours of the start of the hearing, and every 72 hours during the course of the hearing.

  • In-person participants who attest that there are circumstances that prevent them from being vaccinated can attend the hearing virtually or provide proof of a negative PCR test within 72 hours of the start of the hearing, and every 72 hours during the course of the hearing. All costs associated with COVID testing or virtual attendance are the responsibility of the party with an in-person participant who has indicated that there are circumstances that prevent them from being vaccinated.

The policy adds: “Counsel will file an attestation with their FINRA case administrator that they are fully vaccinated and that all of their parties, paralegals, witnesses, etc. are fully vaccinated. Arbitrators and mediators will also be required to file the attestation.”

Florida Exception

DRS amended the new policy on September 21 to create a Florida exception, which reads as follows (footnotes omitted):

Effective October 4, 2021 through July 1, 2022, for cases with in-person arbitration hearings or mediation sessions (hearing) in Florida, all in-person participants, including arbitrators, mediators, counsel, parties, paralegals, witnesses, and others, must provide proof of a negative PCR test within 72 hours of the start of the hearing and every 72 hours during the course of the hearing. In the alternative, in-person participants in Florida may attest that they are fully vaccinated. All costs associated with COVID testing are the responsibility of the parties or individuals that incurred them.

Original Policy from Last Summer

Recall that we reported in SAA 2021-34 (Sep. 9) on the expanded safety protocols established for in-person hearings, which resumed August 2. We were able to obtain from FINRA a copy of the form letter sent to all in-person participants. The letter repeated the safety measures described in Safety Protocol for In-Person Hearings and then stated that all in-person participants — including arbitrators — must submit a daily health certification through FINRA’s survey system (FINRA will email a link to the certification to be submitted electronically each day). FINRA will send the chairperson (or an arbitrator designated by the chairperson): “a daily report of any in-person participants who did not fill out the certification.” The consequence of non-compliance? “Individuals may not participate in the hearing until they have filled out the certification for that day.”

That Didn’t Take Long

We observed in #34 that: “while the Health Certification Form surveys participants on COVID-19 symptoms and possible exposure, it does not inquire about vaccination status.” Our editorial note said: “This all makes sense, but we are puzzled by the lack of any references to vaccination status. In some locations such as New York City, individuals are required to furnish proof that they are vaccinated before entering certain indoor public venues.”

 (ed: *We are no longer puzzled. **Although the new policy runs through July 1, 2022, the date: “is subject to change as health and safety conditions warrant.” ***We suspect that the Florida exception was created in response to that State’s restrictions on mandatory or proof of vaccination policies.)

This post first appeared on the Securities Arbitration Alert blog.  The blog’s editor-in-chief is George H. Friedman, Chairman of the Board of Directors for Arbitartion Resolution Services, Inc.

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