Proof of Vaccination as a Passport to Goods and Services: Practice Tips for Businesses and Institutions

In the coming months, COVID-19 immunizations in the United States will extend beyond priority groups to the general population. Businesses, under increasing pressure to draw back clientele who have stayed away during the pandemic, may see requiring their customers to present proof of vaccination as a way to draw customers by guaranteeing a safe environment. In some contexts, requiring proof of vaccination as a gateway to doing business may be a way for entities to control costs they might incur as a result of health crises among their unvaccinated clients and customers.

While public health authorities point out that people who have been vaccinated should continue to observe social distancing and mask mandates, it is likely that as we approach herd immunity in the U.S., evidence of COVID-19 immunization may become a prerequisite to entering some businesses or receiving certain services. [1] And most businesses and facilities will be able to impose such requirements, subject to important exceptions.

First, and most significantly, a “place of public accommodation” is generally prohibited from imposing certain discriminatory qualifications on who may make use of its services. In some instances, excluding people who have not been vaccinated without providing them alternative ways to make use of a business’s facilities or services may run afoul of those laws.

What is a “Place of Public Accommodation”? It Depends.
Several federal statutes and many state laws regulate discrimination in public accommodations; determining whether those laws might apply involves analysis of both what types of discrimination are prohibited and what types of entity are covered by the prohibition.

The first significant federal law in the modern era to address equal access to public accommodations, the Civil Rights Act of 1964, focuses on the types of service that were most controversial during the Civil Rights Movement in defining “public accommodation.” That statutory definition includes,

. . . if its operations affect commerce, or if discrimination or segregation by it is supported by State action:

    1. any inn, hotel, motel, or other establishment which provides lodging to transient guests . . . [;]
    2. any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, . . . or any gas station; [and]
    3. any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment . . . .[2]

Title II prohibits discrimination by any of the types of business set out above on the basis of race, color, religion or national origin. 42 U.S.C. § 2000a(a). Notably absent from this list, however, are general businesses such as department stores, banks, medical facilities, grocery stores and pharmacies,[3] and, surprisingly, no federal law appears to prohibit discrimination in denying service to customers on the basis of religion for private businesses and venues other than those meeting the definition above.[4]

Some 15 years after passage of the 1964 Civil Rights Act, Congress adopted the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability across a wide range of businesses and services, including places of public accommodation. Significantly, the definition of “place of public accommodation” in the ADA is much broader than Title II’s definition and includes any business or entity generally open to the public that falls into one of 12 categories, such as restaurants, movie theaters, schools, recreational facilities, etc.[5]

The ADA generally makes it illegal for a place of public accommodation to screen out persons with disabilities from access to and full enjoyment of goods, services, facilities, privileges, advantages or accommodations. 28 CFR § 36.10.

Finally, many states have public accommodations statutes that may be broader in scope and coverage than Title II of the Civil Rights Act or the ADA, meaning that in some states more businesses may be covered and religious discrimination may be one of the included prohibitions.

How Do the Civil Rights Act and the ADA Relate to Vaccine Requirements?
These statutes relate to vaccination passport requirements in two ways. First, excluding people who are unable to be vaccinated because of a medical condition that qualifies as a disability would raise a potential claim of discrimination under the ADA. However, the ADA does permit a place of public accommodation to impose legitimate safety requirements that are necessary for safe operation. Such requirements must be based on actual risks, not on speculation, generalizations or stereotypes. And a public accommodation must make reasonable modifications in policies, practices, or procedures to accommodate persons with disabilities, unless such modifications would “fundamentally alter the nature of the goods, services, facilities, advantages or accommodations” provided by the business. 28 CFR § 36.302. Thus, where a person is unable to receive a vaccine because of a medical condition that constitutes a disability, a place of public accommodation will be required to provide a reasonable modification to its policies by, for example, allowing the customer to make use of its services and facilities if masked and socially distanced.

Similarly, a business, entity or facility that meets the Civil Rights Act’s definition of a place of public accommodation (or the definition in an analogous state law) may not discriminate on the basis of religion. For adherents of some religions, immunizations are prohibited. Thus, places of public accommodation covered by such statutes may not exclude unvaccinated persons who have religious objections to immunization.  Here, too, the customer must be provided a reasonable accommodation, such as allowing entry with masking and social distancing observed.

Businesses Other Than Places of Public Accommodation
Businesses or entities other than places of public accommodation may also be prohibited from engaging in types of discrimination that a vaccination requirement could implicate. For example, under the federal Affordable Care Act, health insurance cannot be denied on the basis of pre-existing conditions. Thus, the ACA would prevent an insurer from declining coverage based on lack of vaccination where the person seeking coverage was precluded by a pre-existing condition from receiving the vaccine.[6] In this regard, businesses should always consult state laws before adopting policies or practices that may tend to exclude from their facilities or services a discrete category of persons.[7]

Practice Tips for Enforcing a Vaccine Requirement
Entities that wish to impose a vaccination requirement will need to take several steps before they begin.

  1. Involve legal counsel early to determine what restrictions can be imposed and what accommodations must be provided for people who are unvaccinated for reasons that justify exemption.
  2. Stay current on what type of verification is acceptable. Numerous apps are in development or already being pushed out by developers, but with such a controversial and important issue, entities will no doubt encounter the immunization version of the “fake ID.”
  3. Do not ignore data privacy and security. Businesses and entities should avoid, where possible, taking possession of sensitive medical information, including whether someone has been vaccinated. In contexts where they must do so (for example, in evaluating applications for travel insurance), they must involve legal counsel and information technology experts to ensure that they store and use such information consistent with applicable confidentiality and privacy laws.
  4. Train staff on how to handle encounters with tact and sensitivity. Equipping employees with knowledge of who may be properly excluded from entry or services, what information may be solicited and what accommodations must be allowed can prevent angry confrontations that damage business reputations.

Screening employees, clients and customers for COVID-19 vaccination may provide an advantage to businesses and entities whose revenues have suffered during the pandemic. But as outlined above, significant legal constraints—and the practical implementation hurdles they create—make it crucial to implement such programs only after careful planning and training, and in reliance on trusted sources of validation.

written by David Parker

[1] As of December 11, 2020, the vaccines available in the U.S. are permitted under an Emergency Use Authorization, and the Federal Food and Drug Act requires that recipients must be told that they have the option to refuse the vaccine. 21 U.S. Code § 360bbb-3. Until vaccines receive full FDA approval, likely by mid-year 2021, it is unlikely that businesses may legally impose vaccination mandates.

[2] 42 U.S.C. §2000a(b). The definition also includes any establishment “physically located within the premises of any establishment otherwise covered” by the definition or “within the premises of which is located any such covered establishment,” if in either case it holds itself out as “serving patrons of any such covered establishment.” In other words, a restaurant located in the back of a pool hall would not be exempted from the definition even if the pool hall otherwise would be.

[3] Separate federal statutes prohibit discrimination in air travel on the basis of race, color, national origin, sex, religion or ancestry and in bus and rail transportation on the basis of race, color or national origin.

[4] Many state laws do prohibit such discrimination. And separate federal statutes prohibit discrimination in air travel on the basis of race, color, national origin, sex, religion or ancestry and in bus and rail transportation on the basis of race, color or national origin.

[5] Examples cited in the Americans with Disabilities Act enabling regulations include places of lodging, restaurants, bars, theaters, concert halls, stadiums, auditoriums, convention centers, lecture halls, bakeries, grocery stores, clothing stores, hardware stores, laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, accountant or law offices, pharmacies, insurance offices, health care provider offices, transportation depots or stations, museums, libraries, parks, zoos, schools and daycare centers, homeless shelters, gyms, spas, bowling alleys, and golf courses. 28 CFR §36.104.

[6] No such prohibition exists for life insurance, long-term care insurance or travel insurance.

[7] For information about how employers or institutions of higher education can impose vaccination requirements of employees or students, see “Anticipating COVID-19 Vaccine: What Should Employers and Institutions of Higher Education Do Now?”

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