Injecting Good Practices into Mandatory Vaccination Programs

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August 12, 2021
Legal Corner
Sean Cox

The full text of the EEOC's guidance related to COVID-19 can be accessed at: 

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws


The COVID-19 pandemic and the subsequent shutdown was a brutal blow to the hospitality and travel industries. Travel bans, stay at home orders, and businesses shuttered by government mandate all took a harsh toll. According to a United Nations report, airline passenger numbers dropped by 60% in 2020. The United Nations also estimated that global tourism losses from the pandemic could exceed $910 billion. Many well-known and successful brands will not re-open after the pandemic. While the hospitality and travel industries are forever changed, today, the situation is greatly improved.

An unprecedented effort by the scientific and medical communities led to the rapid development of multiple effective vaccines against the COVID-19 virus. Following expedited emergency use authorizations by regulators throughout the world, the vaccine roll-out began in late 2020 and early 2021. Already in the United States, vaccines are widely available, albeit with some vaccine hesitancy by a sizeable percentage of the population. Vaccine availability lags in the rest of the world, significantly in some places, but there is progress – and hope.

By the middle of 2021 there has been a significant recovery in number of travelers and travel spending, but there is still a tremendous shortfall, especially in business travel. The International Monetary Fund estimates that travel will not return to pre-pandemic levels until 2023. It is unlikely that the industries will fully rebound until travelers and hospitality workers feel safe. 

Until the disease is fully controlled, the simplest way to provide that feeling of safety is to require employees and consumers to provide proof of vaccination. Knowledge that those around them, both employees and fellow travelers, are vaccinated and unlikely to transmit COVID-19 is an attainable first step in alleviating the concerns of travelers. Many hospitality companies see such requirements as necessary to their business. Whether businesses are permitted to require their employees or customers to have or show proof of a COVID-19 vaccine is far less simple, and while the questions of whether employee vaccine mandates versus customer requirements are related, the analysis is somewhat different.

So far, much of the commentary has centered on whether employers can require their employees to have a COVID-19 vaccine. The United States Equal Employment Opportunity Commission ("EEOC") is the federal agency charged with enforcing many of the important laws related to employee/employer relationships in the United States. It has recently released official guidance on employee vaccine mandates. Simply, the guidance states that employers may generally require their employees to receive a COVID vaccine, but the employer must also provide reasonable accommodations for employees who, because of a disability or sincerely held religious beliefs, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship. The EEOC goes on to provide examples of reasonable accommodations, such as requiring the unvaccinated employee to wear a facemask, maintain social distance, work a modified shift, get periodic tests for COVID-19, or telework. 

Of course, EEOC guidance is subject to a large caveat. The EEOC is tasked with enforcing certain federal laws. Other federal laws and most state employment laws are outside its purview and vaccine mandates may run afoul of state laws that can vary greatly by jurisdiction. For example, in Texas, more than 100 employees of a large hospital group have filed a class action lawsuit against their employer charging that a vaccine mandate is impermissible. It is unlikely to be the only such lawsuit.

To safeguard the health of their employees and other customers, some businesses are also requiring customers to show proof of vaccination. It is certainly an understandable effort to reestablish trust in the safety of travel. Some countries, such as the European Union, China, and Japan, are already working on ways for travelers to digitally evidence their immunization status or, in some cases, a negative COVID-19 test. Colloquially, these have been termed "vaccine passports." 

For example, the European Union has set a July 1, 2021 date for all its member states to implement EU digital COVID-19 certificates to allow travel by passholders within the European Union bloc  countries. It is expected that at least some member nations will offer these digital certificates to non-residents who show proof of vaccination.

In comparison, the United States is taking a piecemeal approach. Primarily due to separation of powers principles, the Federal Government has instead focused on speeding vaccine availability and encouraging vaccine use rather than a mandate. There has been no federal effort to develop a vaccine passport, but there is likewise no federal law that prohibits a business from inquiring into the vaccine status of customers. Some of the largest tech companies are working together to develop just such a system. However, individual states have taken very different positions on vaccine passports.

Like the approach taken by the European Union, some states, such as New York and California, are encouraging the use of COVID-19 passports as a way of getting back to normal and bolstering tourism. For example, New York has introduced the Excelsior Pass, which is a digital record of vaccination or a negative COVID-19 test. The Excelsior Pass gives businesses the ability to electronically scan a person's certificate and quickly confirm vaccination or a negative test. In states like New York, vaccination mandates by private businesses are not only permissible, but are actively encouraged by the state.

At the other end of the spectrum there are states, notably Florida and Texas, that have sought to limit or outright ban the use of COVID vaccine passports. In early 2021, the Governor of Florida issued an executive order that purports to prohibit any business from requiring patrons to provide documentation of COVID vaccination or recovery. Other states are expected to follow with similar prohibitions. It is unclear what consequences could arise from violating Florida's executive order, or even whether the executive order is enforceable, but as with any government mandate, the safer course is always compliance. In jurisdictions like Florida, it may be necessary to continue more accepted precautions such as social distancing to protect the health of employees and other patrons.  

Especially in the United States, vaccination mandates and vaccination passports are a politically fraught topic and one that engenders strong feelings on both sides of the issue. However, the consensus among the scientific and medical community is that widespread vaccination is the surest way to end the pandemic and for life to return to normal. It is understandable that many in the hospitality and travel industries seek to protect their employees and customers and help restore the feeling of safety, but in some jurisdictions, it is important to understand that requiring vaccination or proof of vaccination may be nominally illegal. A jurisdiction-specific analysis should be completed before instituting any vaccine or proof of vaccination mandate.

Sean Cox, CIPP/US, is an attorney in the Atlanta office of Hall Booth Smith. His practice involves both domestic and global data privacy and security regulation.

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